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Part 2 – Glass MSA Key Terms and Conditions

2.1.       Scope.   Each Deliverable is made available on a non-exclusive, non-sublicensable and non-transferable, limited basis for Customer’s internal business use only, solely in connection with the specific Asset(s) identified, and during the applicable Service Period indicated, in an applicable SOW.  Any other use of a Deliverable is strictly prohibited. Customer shall not resell any Deliverable, make any Deliverable available for use or inspection by any third party, or use any Deliverable for any non-specified Asset, or beyond an indicated Service Period.  “SOW” or “Statement of Work” means a written order for one or more Deliverables that: (a) cross-references this MSA; and (b) has been signed (electronically or in writing) by both parties.  Unless otherwise defined elsewhere in this MSA, capitalized terms used in the MSA shall have the meaning provided in Part 3 of this MSA.  If there is any discrepancy between the MSA and any SOW, the SOW shall prevail.

2.2        Customer Obligations. Customer will comply and will cause all employees and others who gain access to Deliverables through Customer to comply, with: (a) this MSA; (b) all applicable SOWs; and (c) all applicable laws, rules, regulations, and orders related to the performance of the MSA and all applicable SOWs. 

2.3.       Term; Termination. 

2.3.1    Term.  Unless earlier terminated in accordance with this MSA: (a) (a) the term of this MSA shall commence on the Effective Date and continue until expiration of the Initial Term; and (b) thereafter automatically renew in one year increments on the anniversary of the Effective Date, unless either party provides notice of non-renewal no less than 60 days prior to the then-applicable auto-renewal date (together, the Initial Term and any renewals are the “Term”).  The term of each SOW shall be as provided in the applicable SOW.

2.3.2    Termination Rights; Survival. Either party may terminate this MSA and/or any SOW without prejudice to all other rights available under this MSA or at law or equity: (a) if the other party fails to cure a material breach within 45 days after receipt of written notice provided by the aggrieved party describing the alleged breach in reasonable detail; or (b) immediately, in the event either party becomes liquidated, dissolved, bankrupt or insolvent, whether voluntarily or involuntarily, or shall take any action so declared.  PaneraTech may terminate a SOW immediately upon written notice if Customer is in breach of section 2.5 (Proprietary Rights), section 2.6 (Confidential Information), or section 13.4 (Export Controls). Except as set forth in section 2.3 (Term; Termination), section 2.4 (Fees + Payments), section 2.5.2 (Deliverables), section 2.7 (Limited Warranties), section 2.6 (Confidential Information), section 2.8 (Limitation and Exclusion of Liability), or Part 13 (General Terms and Conditions), all of which shall survive termination, upon termination of a SOW, all rights and duties of the parties under such SOW shall expire.  Notwithstanding the foregoing, unless terminated in accordance with this MSA, any SOW that is in effect at the time of termination of this MSA shall continue for its stated term and all applicable terms of this MSA shall apply thereto.

2.3.3    Return of Equipment and Removal or Destruction of Confidential Information. Unless otherwise expressly provided in an applicable SOW, upon termination of an SOW, Customer will: (a) immediately discontinue use of any and all applicable Deliverables; (b) within 10 business days after termination, return all Equipment to PaneraTech that is not Attached in accordance with section 5.4.1; (c) within 5 business days after PaneraTech detaches any Attached Equipment, return all such Equipment to PaneraTech in accordance with section 5.4.1; (d) within 10 business days, remove and destroy all Confidential Information (defined below) of PaneraTech; and (e) if requested in writing by PaneraTech, confirm the same in a signed writing delivered to PaneraTech (except that Customer shall NOT be required to remove or destroy copies of any Reports, provided that Customer continues to limit sharing of such Reports to its Affiliates and Asset repair contractors in accordance with section 2.6.4).   To the extent any government or agency in a country in which an applicable Plant is located fails or refuses to timely issue any customs or other permits needed to export applicable Equipment back to PaneraTech, despite Customer’s best efforts and PaneraTech’s good faith cooperation, Customer shall, within five business days of such country’s failure or refusal, provide PaneraTech with written notice of its election either to: (i) treat the applicable Equipment as Lost or Stolen, and promptly pay to PaneraTech applicable fees for Lost or Stolen items, or (ii) in accordance with the applicable SOW, pay applicable Service(s) fees to PaneraTech in connection with the related Service(s) on a pro rata basis, as if an additional Deliverable Period were added for each partial or full Deliverable Period until the Equipment is returned to PaneraTech’s possession, along with fees for any additional labor and materials provided by PaneraTech at PaneraTech’s then-current rates; provided, however, no payments in accordance with this section 2 shall imply any ongoing right to use said Equipment or any related Deliverable.

               2.3.4    Discount and Cost Recovery. In addition to any other available remedies, in the event PaneraTech terminates a SOW for Customer’s failure to cure a material breach within 45 days (or an extended period granted by PaneraTech in writing in its discretion), Customer shall immediately pay to PaneraTech: (a) all Undisputed amounts for invoices corresponding to Deliverables worked on prior to the termination date; (b) all Undisputed amounts for Deliverables provided prior to termination; and (c) the applicable Discount and Cost Recovery Fee; the foregoing would apply to each Deliverable in the applicable terminated SOW. 

2.4.       Fees + Payments.

               2.4.1    Fees.  Unless otherwise specified in an applicable SOW, fees for a Deliverable shall be set at the then-current PaneraTech fee for the Deliverable. All fees are exclusive of any taxes, fees and duties or other similar amounts, however designated. Customer shall pay taxes related to Deliverables (except those based on PaneraTech’s net income) or present an exemption certificate acceptable to all relevant taxing authorities.  Unless otherwise specified in an applicable SOW, no more than once per calendar year, PaneraTech may increase fees for any maintenance, subscription or other recurring fees by no more than the percentage increase (if any), as compared to the previous year, in the higher of: (a) the All Items US Consumer Price Index for all Urban Consumers (CPI-U); or (b) the European Harmonized Index of Consumer Prices (HICP).

        2.4.2    Payments. Payments shall be made pursuant to the applicable SOW in immediately available funds, in U.S. dollars, by certified check, cashier’s check, ACH or wire payment, without any right of set-off or deduction.  Fees are non-refundable. If Customer has not completed or appropriately complied with requirements which prevent or limit commencement or completion, the Deliverables shall be deemed to have been successfully delivered, installed or provided on the date when the Deliverables would have been delivered, installed or provided if Customer had timely and appropriately complied.

        2.4.3    Late Payments.  Customer must notify PaneraTech of any disputed payment obligations in writing within 30 days of receipt of an applicable invoice.  When disputing any payment obligation, Customer shall identify with particularity the legal justification for its dispute of the applicable payment obligation, and the parties shall engage in good faith discussions intended to resolve the dispute within 15 days.  Undisputed payments not made when due, and payments related to payment disputes not resolved within 15 days, shall accrue late fees of 1.5% per month or the highest amount allowable by law, whichever is lower, such interest to accrue on a daily basis before and after any judgment relating to collection.  Late fees do not constitute an election of, or PaneraTech’s exclusive, remedy. Failure to pay Undisputed payment obligations when due shall entitle PaneraTech to suspend or terminate the applicable SOW upon 30 days’ notice to Customer; such suspension or termination will not relieve Customer of its obligation to pay (a) Undisputed fees and charges due and corresponding to the services and other Deliverables duly rendered by PaneraTech and (b) Undisputed expenses incurred by PaneraTech in planning to deliver future Deliverables, such as costs incurred when ordering supplies for future Deliverables. Customer shall pay any and all legal fees, collection fees and other expenses incurred by PaneraTech to enforce the MSA or any SOW.

               2.4.4    Fee Disputes. If Customer reasonably disputes any invoice, Customer must pay the Undisputed portion and submit written notice of the dispute (including sufficient detail of the nature of the dispute, the amount and invoices in dispute and information necessary to identify the affected Deliverable(s) for the disputed amount). All invoice disputes must be submitted to PaneraTech in writing within 30 days from the date of the applicable invoice. Customer waives the right to dispute any charges not disputed within such period. If a dispute is resolved against Customer, Customer shall pay such amounts plus interest at the rate referenced in section 2.4.3 from the original payment due date. 

2.5.        Proprietary Rights. 

               2.5.1     Information Provided by Customer.  Customer: (a) represents that all text, drawings, documents and other information provided by or on behalf of Customer to PaneraTech are true and accurate and comply with the AUP; (b) acknowledges that Customer will be responsible for paying any additional fees and expenses reasonably and necessarily incurred as a result of an inaccuracy in documents or other information provided by Customer or failure of Customer to comply with the AUP; and (c) grants to PaneraTech the right to use the text, drawings, documents and other information to prepare one or more proposals and provide Deliverables or otherwise conform with Section 7.4. 

               2.5.2    Deliverables. Except to the extent of any non-sublicensable, non-transferable, limited license or lease expressly provided in an applicable SOW, all Deliverables will be and remain the exclusive property of PaneraTech or its applicable Affiliate or Vendor. Customer will not, and will not permit any employee or other third party gaining access to Deliverables through Customer, to take any action inconsistent with PaneraTech’s or its applicable Affiliate or Vendor. Software and Documentation are protected under the trade secret and copyright laws of the United States and equivalent international laws and treaties, and certain Deliverable components may be patented or patent-pending. Customer will not, and will not permit any third party, to: (a) adapt, modify or copy all or any part of any Deliverable; (b) remove, alter, cover or obscure any confidentiality, copyright, patent, government-restricted rights or other proprietary notices or legends included on or in any Deliverable; (c) unlock, reverse engineer, tamper with, decrypt, disassemble or de-compile all or any part of any Software or other Deliverable, or otherwise reduce Software to human-readable form, or attempt to do any of the foregoing (except to the extent that such restriction is expressly prohibited by applicable law); (d) connect to any Equipment or other Deliverable any equipment other than a Deliverable leased or licensed in connection with such Equipment; (e) publish any results of benchmark tests run on any Deliverable; (f) use or permit any Deliverable to be used to perform services for third parties, whether on a service bureau or time sharing basis or otherwise; (g) access any Deliverable in order to design or build a competitive product or service; or (h) disclose, provide, or otherwise make available trade secrets contained within any Software, Documentation or other Deliverable in any form to any third party. Customer shall implement reasonable security measures to protect such trade secrets.  Customer hereby assigns to PaneraTech all right, title, and interest in and to any modifications or enhancements to an Deliverable made by or on behalf of Customer, directly or indirectly, whether or not such modifications or enhancements are expressly permitted under this MSA. Without limiting the generality of this section 2.5, Customer shall at all times protect and defend, at its own cost and expense, against claims arising by or through Customer challenging the title of PaneraTech as owner of any Deliverable made available to Customer, and keep such Deliverables free and clear from all claims, liens, processes and other encumbrances by or arising through Customer. Except to the extent otherwise expressly provided in an applicable SOW, all Deliverables shall remain personal property of PaneraTech, regardless of the degree of annexation to, temporary installation in, or affixation to, real or personal property. During the term of any Service, Software license or subscription, or Equipment lease, neither Customer nor any Affiliate of Customer shall engage in the development of, or assist any other person or entity to develop, any Deliverable or technology which competes with or is substantially similar to such Service, Software or Equipment.

2.6.       Confidential Information.

2.6.1    Scope of Use.  A receiving party (“Receiving Party”): (a) may use Confidential Information of the disclosing party (“Disclosing Party”) solely to the extent necessary to perform under the MSA (in the case of PaneraTech, this includes its efforts to improve and develop Deliverables); and (b) shall not disclose Confidential Information to any third party, other than to employees of Receiving Party who have a need to have access to and knowledge of Confidential Information and are subject to confidentiality restrictions consistent with this section 2.6, solely for the purpose authorized above, or to certain advisors or Asset repair contractors of Receiving Party pursuant to section 2.6.4. Each party shall take appropriate measures to ensure against unauthorized storage, disclosure or use using the same level of care (including both facility physical security and electronic security) as it employs to avoid unauthorized access, storage, disclosure, publication, dissemination or use of its own Confidential Information of like character, but in no event less than a reasonable standard of care.

2.6.2    Limitations. Receiving Party shall have no obligation with respect to information that: (a) was rightfully in possession of Receiving Party without any obligation of confidentiality prior to receiving it; (b) is, or subsequently becomes, legally and publicly available without breach of the MSA; (c) is rightfully obtained by Receiving Party from a source other than Disclosing Party without any obligation of confidentiality; or (d) is developed by or for Receiving Party without use of the Confidential Information and such independent development can be shown by documentary evidence.  In the event Receiving Party receives a valid order issued by a court or government agency requiring disclosure of Confidential Information, Receiving Party shall provide written notice and enable the Disclosing Party the opportunity to oppose or restrict such disclosure. Upon written demand by Disclosing Party, Receiving Party shall: (x) cease using the Confidential Information; (y) return the Confidential Information and all copies, notes or extracts thereof to Disclosing Party within seven days of receipt of demand; and (z) certify in writing that Receiving Party has complied with such obligations.

2.6.3    Rights + Restrictions.  Each party retains all right, title and interest to its Confidential Information. Except as provided in section 2.6.1(a), no license to any intellectual property (or application for intellectual property protection) is granted or implied by conveying Confidential Information. Receiving Party shall not reverse-engineer, tamper with, decompile, or disassemble any Deliverable disclosed to it (except to the extent such restriction is expressly prohibited by applicable law), and shall not remove, overprint or deface any notice of copyright or confidentiality, trademark, logo, legend, or other notices of ownership from any originals or copies of Confidential Information.

2.6.4     Publicity; Disclosures to Certain Advisors.  Subject to this section 2.6, (a) Customer may share Asset health data generated by a Deliverable with actual or prospective Asset repair contractors and (b) either party may disclose to its actual and prospective insurance brokers, underwriters, financial institutions, investors, analysts and permitted assignees, that Customer’s risk mitigation strategies include Deliverables, provided that each such Asset repair contractor or other third party is subject to confidentiality restrictions consistent with this section 2.6. Except as provided in the foregoing sentences or otherwise expressly agreed in writing by the parties: (i) neither party shall disclose the existence, subject matter, or discussions relating to, the MSA or any SOW to any third party without the other party’s prior written consent; and (ii) any public disclosure regarding the MSA or any SOW is subject to prior review and written approval of both parties.

2.7.       Limited Warranties; Acknowledgements.

2.7.1    Limited Warranties.  to the extent permitted by applicable law: (a) all Deliverables are provided on an “AS-IS” basis; and (b) neither PaneraTech nor any Affiliate or Vendor, nor any of their respective employees, agents, Affiliates, suppliers, lessors, contractors or licensors, make any representations or warranties of any kind, express or implied, and those parties expressly disclaim all such warranties with respect to all Deliverables provided hereunder, including all warranties (i) of merchantability, fitness for a particular purpose, non-infringement, title, satisfactory quality, quiet enjoyment, accuracy, or system integration; or (ii) arising from any course of dealing, course of performance, or usage in the industry. None of such parties warrant that access to or use of any Deliverable will be uninterrupted or free from errors, defects or bugs; nor do any of them make any warranty as to the results that may be obtained from the use thereof or as to the accuracy, reliability or content of any information, service or merchandise contained in or provided through any Deliverable or on or in any website or other marketing materials. Neither PaneraTech nor any Affiliate or Vendor shall be liable for any data transferred to or from Customer or any Deliverable or processed or stored by PaneraTech or Customer or others, whether on or via any Deliverable or otherwise.

               2.7.2    Acknowledgements.  Customer agrees and acknowledges that: (A) all block, overcoat and other layouts provided by PaneraTech are simulated approximations based on drawings and other information provided by Customer, and may not be to scale, and the actual size and location of blocks, insulation, overcoat and other materials should be determined and confirmed by Customer in consultation with a Plant engineer; (B) Deliverables used or made available by PaneraTech have limitations, such as the inability to see though metal or some refractories, the inability to detect molten material below a certain size threshold, and the inability to detect molten material that has caused less than 10mm of wear in the applicable refractory; (C) Customer will always follow training documentation provided by PaneraTech, along with the Plant and Safety Requirements described in Part 10 and industry standard safety policies and procedures; (D) Customer is solely responsible for all damages, injuries and other consequences of any action, inaction or decision made or taken by or on behalf of Customer with respect to the operation and maintenance of its Assets (“Asset Consequences”); (E) unless otherwise provided in an applicable SOW, refractory conditions, projections and recommendations in any Report, Documentation or other Deliverable are merely estimates based on average refractory wear data collected by PaneraTech for refractories which are similar to those used in the construction of the Asset that is the subject of the Report, Documentation, or other Deliverable; (F) each sensor’s area of coverage and depth range for molten material detection are merely estimates based on insulation and/or refractory layer configuration; (G) changes made by Customer to an Asset could affect one or more projections and recommendations included in a Report, Documentation, or other Deliverable, such as changes in the average operating temperature of the Asset or other changes to an Asset’s operational parameters; (H) incorrect Deliverable readings may result from changes to Asset conditions that have not been documented by Customer and shared with PaneraTech in writing, damage to hardware (e.g., a control box, sensor or cable), placement of metal structures near a sensor after installation of the sensor, temperatures beyond the normal operational range in areas where sensors are installed, and Customer applications around an applicable Asset (e.g., water); (I) Deliverables are intended to supplement, not to replace or act as a substitute for, a comprehensive, industry-standard Asset monitoring program; (J) unless otherwise provided in an applicable SOW, Customer is solely responsible for storing and maintaining its own data backups; (K) PaneraTech does not and cannot guarantee either Asset health at any given moment in time or full coverage of any section of an Asset for refractory monitoring; and (L) to the extent any software component of a Deliverable offers the use of artificial intelligence to streamline Customer ‘s review or analysis of relevant data, the output of any component that relies on artificial intelligence is neither infallible nor a substitute for Customer’s own fulsome analysis and critical thinking, including careful consideration of applicable data .

               2.7.3    Disclaimer of Certain Damages. In no event will PaneraTech or any Affiliate or Vendor or their respective employees, agents, Affiliates, suppliers, lessors, contractors or licensors or the like, be liable to Customer or any third party for any indirect, incidental, special, consequential, exemplary or punitive damages (including damages for loss of goodwill, profits, revenue, data or use), arising out of or in connection with the MSA or any SOW or any Deliverables provided or performed, in connection herewith, whether in an action in contract, tort, strict liability or other legal theory, even if such party has been advised of the possibility of such damages, provided that  such damages or losses are not due to the gross negligence or willful misconduct of PaneraTech. 

               2.7.4    Sole Remedy. PaneraTech’s and its Affiliates’ and Vendors’ sole responsibility, and Customer’s sole remedy, in connection with any malfunction or defect in any Deliverable will be the repair, replacement or re-performance of the affected Deliverable in accordance with an applicable, unexpired limited warranty. PaneraTech may interrupt access to and use of any Deliverable (including Internet connectivity) at any time, without liability to Customer, to perform scheduled or emergency maintenance. PaneraTech will use reasonable commercial efforts to provide Customer with at least five (5) days’ advance notice of scheduled maintenance.

2.8.       Indemnification; Limitation of Liability.

2.8.1    PaneraTech Indemnification.

2.8.1.1        PaneraTech shall indemnify and hold Customer, its Affiliates and its and their respective directors, managers, officers and Representatives (collectively, the “Customer Indemnitees”) harmless from and against all damages, losses, liabilities, penalties, costs and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) incurred by the Customer Indemnitees, and shall defend the Customer Indemnities from all claims, demands, suits, actions or other proceedings brought by a Third Party (“Claims”), to the extent arising out of (i) property damage, personal injury or death caused by the negligence of a Representative of PaneraTech while present at a Plant to conduct activities in accordance with this MSA; (ii) the unauthorized disclosure, publication or dissemination by PaneraTech or its Representatives of the Confidential Information of Customer or its Affiliates due to a failure of PaneraTech or its Representatives to maintain confidentiality or data security safeguards in accordance with this MSA, (iii) violation by PaneraTech or its Representatives of any law or regulation applicable to PaneraTech as a provider of the Deliverables, or (iv) allegations that Customer’s and its Affiliates’ permitted use of any portion of the Deliverables that PaneraTech or its Representatives provides to Customer and its Affiliates in accordance with this MSA infringes or misappropriates the patent, copyright, trademark, trade secret or other proprietary or intellectual property rights of any Third Party.  As used herein, “Third Party” means a person or entity other than Customer or PaneraTech or their respective Affiliates. The obligations of PaneraTech under part (iv) of the preceding sentence do not apply with respect to Affected Deliverables or portions or components thereof: (a) which constitute a Vendor Deliverable; (b) to the extent made in accordance to Customer or Customer Affiliate specifications; (c) modified after shipment by Customer or a Customer Affiliate, if the alleged infringement relates to such modification; (d) combined with other products, processes or materials where the alleged infringement relates to such combination; (e) where Customer or Customer Affiliate continues allegedly infringing activity after being notified thereof in writing or after being informed of or provided with modifications that would have avoided the alleged infringement; (f) where Customer or Customer Affiliate’s use of the Affected Deliverables is not strictly in accordance with the terms of the MSA or applicable SOW(s) and the alleged infringement is directly and proximately related to such impermissible use by Customer; or (g) where changes were made, or actions taken, by PaneraTech upon direct, written instructions from Customer or a Customer Affiliate and liability would not have arisen but for such instructions (collectively, “Excluded Claims”).

2.8.1.2        If a Deliverable provided by PaneraTech is held to constitute, or in PaneraTech’s reasonable judgment is likely to constitute, an infringement or misappropriation of third party intellectual property rights and none of the circumstances described in 2.8.1(a) – (g) apply, PaneraTech will, in addition to its indemnity obligations, at its expense, either: (i) procure the right for the applicable Customer Indemnitee(s) to continue using such Deliverable; (ii) replace such Deliverable with a non-infringing equivalent, provided that such replacement substantially complies with the specifications and requirements therefor as set forth in the applicable SOW and does not result in a material degradation of the functionality, performance or quality of the Deliverable; (iii) modify such Deliverable, or have such Deliverable modified, to make it non-infringing, provided that such modification substantially complies with the specifications and requirements therefor as set forth in the applicable SOW and does not result in a material degradation of the functionality, performance or quality of the Deliverable; (iv) create a feasible workaround that would not have any material adverse impact on the Customer Indemnitee, provided that such workaround substantially complies with the specifications and requirements for such Deliverable and does not result in a degradation of the functionality, performance or quality of the Deliverable; or (v) repurchase the applicable Deliverable from the applicable Customer Indemnitee(s) less depreciation at the rate of twenty five percent (25%) per year, or pro rata for part of the year, from the date of payment to the date of removal of the Deliverable. If PaneraTech selects option (ii), (iii), (iv) or (v), the applicable Customer Indemnitee(s) shall immediately refrain from use of the Deliverable or unmodified Deliverable (as the case may be).

2.8.1.3        The provisions of this section 2.8.1 set forth the entire liability of PaneraTech and the sole remedy of Customer Indemnitees with respect to infringement and allegations of infringement of intellectual property rights or other proprietary rights of any kind, including in connection with the installation, operation, design, distribution or use of all or any part of any Deliverables. 

2.8.2    Customer Indemnification.  Customer shall indemnify and hold PaneraTech, its Affiliates and their respective directors, managers, officers and Representatives (collectively, the “PaneraTech Indemnitees”) harmless from and against all Losses incurred by the PaneraTech Indemnitees, and shall defend the PaneraTech Indemnities from all Claims, to the extent arising out of: (i) property damage, personal injury or death caused by the negligence of Customer, while a Representative of PaneraTech is present at a Plant to conduct activities in accordance with this MSA (e.g., a Representative of PaneraTech becomes injured when a Furnace at a Plant leaks); (ii) the unauthorized disclosure, publication or dissemination by Customer or its Representatives of the Confidential Information of PaneraTech or its Affiliates, (iii) any violation by Customer or its Representatives of any law or regulation applicable to Customer as a recipient or user of the Deliverables, or (iv) an Excluded Claim.

2.8.3    Procedure for Indemnification.  Upon the assertion of any Claim or the commencement of any Claim against any Customer Indemnitee or PaneraTech Indemnitee (each, an “Indemnitee”) by any Third Party that may give rise to liability of an indemnifying Party under this MSA (an “Indemnitor”), the Indemnitee shall promptly notify the Indemnitor of the existence of such Claim.  Failure to provide such notice promptly shall not affect the Indemnitor’s obligations hereunder except to the extent that the Indemnitor is actually prejudiced thereby.  The Indemnitee shall give the Indemnitor a reasonable opportunity to defend or settle the claim at its own expense and with counsel of its own selection, however, the Indemnitee shall have the right to employ separate counsel and participate in the defense at Indemnitee’s sole expense.  Indemnitor shall not enter into any settlement or consent to the entry of any judgment that would require an Indemnitee to admit liability, pay any monies out-of-pocket, or assume any obligation or relinquish any right, without the prior written consent of such Indemnitee.

2.8.4    Workers’ Compensation.  Each party, for itself, its successors, assigns, and subcontractors, expressly agrees to waive any provision of any workers’ compensation act or other similar law whereby such persons or entities could preclude its joinder by an Indemnitee as an additional defendant, or avoid liability for damages, contribution, or indemnity in any action at law, or otherwise where such party’s or it’s subcontractor’s employee or employees, heirs, assigns, or anyone otherwise entitled to receive damages by reason of injury or death brings an action at law against any Indemnitee of the other party.  Each party’s obligation to an Indemnitee of the other party herein shall not be limited by any limitation on the amount or type of damages, benefits or compensation payable by or for the indemnifying party or its Affiliates under any workers’ compensation acts, disability benefit acts, or other employee benefit acts on account of claims against the Indemnitee by an employee of the indemnifying party or its Affiliates or anyone employed directly or indirectly by the indemnifying party or anyone for whose acts the indemnifying party may be liable.  For any Services performed in the State of Colorado, for purposes of Articles 40 through 47 of Title 8 of the Colorado Revised Statutes, known as the Worker’s Compensation Act of Colorado, Customer will be the “statutory employer” of (i) all employees of PaneraTech; and (ii) all employees of PaneraTech’s subcontractors, while they are performing work or furnishing materials in connection with this MSA.  For any Services performed in the State of Ohio, PaneraTech expressly waives the worker’s compensation and other immunity provided to it solely by Article II, Section 35 of the Constitution of the State of Ohio and by Sections 4123.74 and 4123.741 of the Ohio Revised Code or any subsequent amendments, re-enactments or similar laws so that the Customer Indemnitees may fully enforce their indemnification rights under this MSA.

2.8.5    Limitation of Liability.   Except with respect to damages arising from (i) the parties’ respective indemnification, defense and hold harmless obligations under this MSA, (ii) the gross negligence, fraud or willful misconduct of a party or its Representatives, (iii) the unauthorized disclosure, publication or dissemination by a party or its Representatives of the Confidential Information of the other party or its Affiliates due to a failure of the disclosing party or its Representatives to maintain confidentiality or data security safeguards in accordance with this MSA, (iv) personal injury or property damage arising from the negligence of a party or its Representatives while conducting any activities at a Plant; and (v) any acts or omissions for which the governing law prohibits the exclusion or limitation of liability (collectively, the “Damages Exceptions”), the maximum aggregate liability of either party to the other party related to or arising out of this MSA, whether under contract, law, tort (including negligence and strict liability) or otherwise, shall not exceed the greater of (a) the total amount of all compensation paid or payable to PaneraTech under the applicable SOW during the 12 month period immediately preceding such claim or (b) Five Hundred Thousand U.S. Dollars ($500,000) (the “Direct Damages Cap”).  Except with respect to the Damages Exceptions, in no event shall either party, their Affiliates or their respective employees, agents, suppliers, lessors, contractors or licensors or the like be liable, whether under contract, law, tort (including negligence and strict liability) or otherwise, for any indirect, incidental, consequential or special damages, even if that party is notified in advance of such possibility, arising out of or pertaining to the subject matter of this MSA.  PaneraTech’s and its Affiliates’ and Vendors’ sole responsibility, and Customer’s sole remedy, in connection with any malfunction or defect in any Deliverable will be the repair, replacement or re-performance of the affected Deliverable in accordance with an applicable, unexpired limited warranty. PaneraTech may interrupt access to and use of any Deliverable (including Internet connectivity) at any time, without liability to Customer, to perform scheduled or emergency maintenance. PaneraTech will use reasonable commercial efforts to provide Customer with at least five days’ advance notice of scheduled maintenance.

2.9.       Activation; Tampering/Fraud Detection; Lost Deliverables.

2.9.1    Activation.  In order to use any Deliverable, Customer may be required to activate it with a registration number, genuine product key or other authorized method, and connect to the Internet.

2.9.2    Tampering/Fraud Detection. When Customer connects to the Internet while using a Deliverable, the Deliverable may automatically contact PaneraTech or a Vendor (or an Affiliate of PaneraTech or the Vendor) to confirm whether the Deliverable used by Customer is genuine and appropriately associated with the Asset(s) or Deliverables with respect to which it is licensed, or whether any Equipment has been disassembled or otherwise tampered with. In either case, transmission of certain information will occur, and Internet, telephone and SMS service charges may apply. During activation or other use of a Deliverable, the Deliverable may detect unauthorized uses, licensing or changes; in such a case, the Deliverable may automatically report such information to PaneraTech  or a Vendor, or terminate unauthorized use or access to the Deliverable. In the event of any unauthorized uses, licensing or changes, regardless of the means of detection (a) the Customer shall promptly pay PaneraTech for such unauthorized use(s) in accordance with its then-standard rates, and for repair and/or recalibration of damaged equipment in accordance with the applicable SOW; and (b) PaneraTech may choose, in its sole discretion, to terminate the SOW and exercise any other available remedies. 

2.9.3    Damaged/Lost/Stolen Deliverables.  Customer shall be solely responsible for the safekeeping and proper use and treatment of any Deliverable made available to Customer while such Deliverable is being accessed by, or in the possession or control of, Customer.  Without limiting the generality of the foregoing: (a) Customer agrees to adopt and enforce safety and security rules intended to prevent damage, improper use of, or unauthorized access to, or loss or theft of, any Deliverable made available to Customer; (b) Customer shall promptly report any damage, access or use prohibited by this MSA, an applicable SOW, or the Documentation or inconsistent with warnings displayed on or by the Deliverable or use of electronic devices (such as exposure to water), or unauthorized access to, or loss or theft of, any Deliverable to PaneraTech in writing and fully cooperate with PaneraTech and law enforcement in connection with any investigation into any unauthorized access to, or loss or theft of, any Deliverable; (c) PaneraTech may choose, in its sole discretion, to terminate this MSA and any applicable SOW(s) and exercise any other available remedies in the event of any damage to, improper use of, or unauthorized access to, or loss or theft of, any Deliverable, unless Customer has remedied such conditions within 30 days and the applicable damage, improper use of, or unauthorized access to, or loss or theft of, any Deliverable was not knowing or willful; and (d) in the event of loss or theft of any leased Equipment, Customer shall immediately pay PaneraTech the applicable fee for lost or stolen equipment described in Part 6.

2.10.    Qualified Purchasers.  Customer may permit one or more Qualified Purchasers to place orders during the term of the MSA directly through PaneraTech by executing a SOW with PaneraTech (each, an “Affiliate Agreement”), subject to the terms and conditions of Part 12. 

Part 3  – Definitions

Unless otherwise defined elsewhere in this MSA, capitalized terms used herein shall have the meaning provided in this Part 3.

“Administrator” means an End User to whom Customer provides administrative access to an Authorized Instance.

“Affected Deliverables” has the meaning provided in section 2.8.1.

“Affiliate” means any company that controls, is controlled by, or is under common control with another company.

“Affiliate Agreement” has the meaning provided in section 2.10.

“Asset” has the meaning provided on the Signature Page.

“Asset Consequences” has the meaning provided in the MSA.

“Attached” has the meaning provided in section 4.8.

“AUP” means PaneraTech’s then-current Acceptable Use Policy, which (among other things) identifies activities and content that are prohibited on, through or in connection with use of any platform, system, network, website, product, Report, tool or other Deliverable made available by or on behalf of PaneraTech.  The current version of the AUP is set forth in Part 11.

“Authorized Instance” means a single, object code version of Refractory Software, installed either in a Customer Environment (in the case of a Refractory Software License) or PaneraTech Environment (in the case of a Refractory Software Subscription), as indicated in an applicable SOW.  Any rights granted to Customer in an SOW with respect to Refractory Software are for the sole and limited purpose of enabling Customer to: (a) query, extract and store Customer-Provided Data concerning the Designated Assets; and (b) generate Reports concerning the Designated Assets.

“Business Hour” means a single hour during PaneraTech’s then-current standard eight-hour workday, excluding weekends and U.S. federal holidays as observed.

“Claim” has the meaning provided in section 2.8.1.

“Commencement Date” means a date designated in an applicable SOW for the start of an Initial Setup.

“Commissioning Date” means the first date that a Equipment or other Deliverable which has been setup with respect to a particular Asset begins to process Sensor data or Customer-Provided Data. 

“Confidential Information” means information disclosed by the Disclosing Party or any Affiliate or agent of Disclosing Party: (a) in written or other tangible form, if conspicuously designated as “Confidential” or bearing a similar legend; and (b) any other information not so designated if it is known, or reasonably should be known, to Receiving Party to be confidential.  Information disclosed orally is Confidential Information only if: (i) identified as confidential at the time of disclosure; and (ii) confirmed as confidential in writing within 30 days of disclosure.  Confidential Information disclosed by or on behalf of Customer includes information regarding Plant and Asset operations, manufacturing processes (including Asset drawings) and technology, technical plans, marketing and financial data, any information marked by Customer as confidential or which Panera Tech is exposed to while at a Plant and should reasonably know is confidential, and any associated copies thereof. “Confidential Information” disclosed by PaneraTech includes Deliverables, information regarding Deliverables (including software, platforms, operational processes, protocols, Deliverable formats, and maintenance recommendations), technical data (including equipment designs and limitations), financial data, marketing data, information relating to future development, any information marked by PaneraTech as confidential, and any associated copies thereof.

“Customer Environment” means a server owned, leased or otherwise controlled by Customer and which meets PaneraTech’s then-current minimum technical standards.

“Customer-Provided Data” means customer data that is the property and confidential information of Customer, and provided to PaneraTech for processing in connection with an SOW, either as data: (a) entered manually by Customer into an Authorized Instance (such as from employee observations concerning a Designated Asset or data collected from a third party sensor owned by the customer); or (b) collected electronically by an Authorized Instance from a database owned or controlled by Customer. 

“Damaged” means Equipment either Damaged by Customer or Damaged by PaneraTech.

“Damaged by Customer” means Equipment that is neither Defective nor Depleted, but while in the possession or control of Customer, has been affected or damaged by collision, use in an application for which the Equipment was not designed, or any other misuse (including vandalism, malicious mischief, tampering, theft or conversion), neglect, incorporation or use of unsuitable attachments or parts, unauthorized alteration, improper installation, or any causes other than Defects.  For example (but without limitation), Damaged by Customer includes: (a) storing or operating Sensors outside the recommended temperature range; (b) operating Sensors outside of suggested guidelines; (c) Equipment used by an unqualified operator; (d) Equipment damaged by an electrical surge or brownout; and (e) Equipment damaged in connection with any Customer or third party maintenance, repair or decommissioning of an Asset.

“Damaged by PaneraTech” means Equipment that that is neither Defective nor Depleted, but while in the possession or control of PaneraTech, has been affected or damaged by collision, use in an application for which the Equipment was not designed, or any other misuse (including vandalism, malicious mischief, tampering, theft or conversion), neglect, incorporation or use of unsuitable attachments or parts, unauthorized alteration, improper installation, or any causes other than Defects.  For example (but without limitation), Damaged Equipment includes: (a) storing or operating Sensors outside the recommended temperature range; (b) operating Sensors outside of suggested guidelines; (c) and Equipment used by an unqualified operator.

“Data Intelligence” means information that is proprietary to PaneraTech or a third party and based on industry trends, averages and/or analytics based on aggregated data collected by PaneraTech from third parties or customers, including Customer.

“Defect” means a defect in material or workmanship under normal use.             

“Defective” means Equipment which is neither Damaged nor Depleted, but has a Defect during the applicable lease term.

“Deidentified Data” means any Customer-Provided Data, Processed Data and Confidential Information of Customer that has been aggregated, anonymized and/or pseudonymized so that it does not identify the Customer or any Asset or Plant to any third party.

“Deliverable” has the meaning provided on the Signature Page.

“Delivery Date” means the date that Customer actually receives applicable Equipment.

“Depleted” means Equipment that is neither Damaged nor Defective, but which no longer operates in accordance with PaneraTech specifications, due to gradual and normal wear and tear that occurs over time during normal use of the Equipment.

“Designated Asset” means an Asset specified in an applicable SOW for use in connection with a Refractory Software License or Refractory Software Subscription, as the case may be.

“Designated Endpoint” means a website designated by PaneraTech for remote access to a PaneraTech Environment.

“Designated Technical Representative” means a Customer employee who has been identified by Customer as such, and has sufficient training and experience with computer software engineering and the Assets to: (a) understand, diagnose and resolve first level support issues, including by using PaneraTech’s available self-support resources; (b) recognize and report second level support issues; and (c) work with PaneraTech’s support team to resolve those second level support issues.

“Diagram” means a PaneraTech-provided written layout and diagram for installation of applicable Deliverables.

“Digital Asset” has the meaning provided in section 11.1.

“Disclosing Party” has the meaning provided in section 2.6.1.

“Discount and Cost Recovery Fee” means, in the event that PaneraTech terminates an SOW due to Customer’s failure to timely cure a material breach: (a) any unrecoverable costs that PaneraTech incurred under the SOW (for example, costs to purchase Equipment for future, planned delivery under the SOW); (b) any costs incurred by PaneraTech to recover Equipment from Customer; and (c) the amount by which all fees due and payable to PaneraTech for Deliverables provided through the date of termination were discounted by PaneraTech as provided in the SOW.  For example, consider a scenario where an applicable SOW provides that the list price for a SmartMelter Full Scan is $60,000, but the list price was discounted for Customer in an applicable SOW by 5%.  If PaneraTech were to terminate that SOW at the end of the 2^nd year due to Customer’s failure to timely cure a material breach, Customer would be required to pay a termination charge equal to the 5% discount ($3,000 in this example) multiplied by the number of SmartMelter Full Scans provided by PaneraTech prior to termination. 

“Documentation” means user manuals, training materials, safety procedures, Asset labelling and measurement guidelines, Equipment use cautions, layouts, bottom plate cutout recommendations, Inspection reports, Deliverable descriptions and specifications, technical manuals, license agreements, user agreements, supporting materials and other information provided by PaneraTech or an Affiliate or Vendor of PaneraTech (as applicable) concerning an applicable Deliverable. 

“Drawing”  means a Customer-provided, comprehensive drawing (as-built) of an applicable Asset or parts thereof, such as: (a) Asset refractory layouts; (b) bottom plate layout; (c) bed steel; (d) Asset support steel; (e) furnace utility layouts (including water piping, air piping, combustion air, boosting, any possible interferences to installation of any Deliverables, etc.); and (f) platform and catwalk layouts.

“Emergency Release” has the meaning provided in section 8.11.2.

“End User” means any Customer employee to whom Customer provides access to an Authorized Instance of Refractory Software.

“Enhancement Notice” has the meaning provided in section 6.2. 

“Equipment” has the meaning provided on the Signature Page, and includes sensors, switch boxes, control boxes, routers and other PaneraTech-owned hardware, software, firmware and wiring that are embedded or connected thereto..

“Equipment Condition Form” has the meaning provided in section 5.1.

“Equipment Issue Notice” has the meaning provided in section 6.3.

“Excluded Claim” has the meaning provided in section 2.8.1.

“Indemnified Party” has the meaning provided in section 2.8.4.

“Indemnifying Party” has the meaning provided in section 2.8.4.

“Initial Setup” means the provision of certain one-time, on-site Services needed to prepare a Deliverable for use in accordance with an applicable MSA   Initial Setup may include, for example: (a) marking an applicable Asset with a high temperature marker; (b) installing one or more Sensors; (c) labelling Sensors on steel work; (d) installing Switch Boxes; (e) installing a control box; (f) installing Sensor Cables between Sensor and Switch Boxes; (g) installing Control Cables from Switch Boxes to control box; (h) connecting power to control box; (i) connecting ethernet/wi-fi to control box; (j) system testing and commissioning; (k) setting up Customer accounts on Refractory Software; and/or (l) training up to three Customer employees to access and use Refractory Software in connection with applicable Deliverables. 

“Inspection” means using Equipment specified in a SOW during the applicable Service Period to conduct measurements permitted by the applicable SOW.

“Inspection Report” means a Processed Data report generated by PaneraTech software and delivered to Customer via Software licensed from PaneraTech, which includes an analysis and review of applicable Raw Data.

“Inspection Service” means an Inspection performed by one or more trained PaneraTech employees or trained contractors engaged by PaneraTech.

“Inspection Service Fee” means a per-Inspection fee charged by PaneraTech for Inspection Services.

“Installation Period” means the installation period described in the SOW for an Authorized Instance installed in a Customer Environment.

“Lost or Stolen” means Equipment that is lost or stolen while in the possession or control of Customer.

“Major Release” has the meaning provided in section 8.11.2.

“Minimal Technical Standards” has the meaning provided in section 8.5.

“Minor Release” has the meaning provided in section 8.11.2.

“MSA” has the meaning provided in the Introduction.

“PaneraTech Environment” means a server owned, leased or otherwise controlled by PaneraTech, and designated by PaneraTech in accordance with section 8.2, if applicable.

“Plant” means a Customer facility at which one or more Assets are located.

“Prior Release” means the prior release of an Authorized Instance

“Processed Data” means (a) Customer-Provided Data and/or Raw Data that has/have been processed by an Authorized Instance and/or (b) Data Intelligence made available to Customer via an Authorized Instance or a Report.

“Qualified Purchaser” means either: (a) an Affiliate of Customer that is wholly owned and directly controlled by Customer; or (b) a third party licensee of Customer which operates one or more Assets and to which Customer provides Asset-related technical support.

“Raw Data” means unprocessed, PaneraTech proprietary radar data collected by Sensors and other Equipment.

“Receiving Party” has the meaning provided in section 2.6.1.

“Refractory Software” means a proprietary PaneraTech application (including designated versions of XSight™ and refractory.ai™) identified in an applicable SOW which: (a) queries, extracts and stores Customer-Provided Data concerning Designated Assets; (b) converts Raw Data concerning Designated Assets into Processed Data, and stores the same; and (c) uses that data to generate Reports concerning Designated Assets.

“Refractory Software License” has the meaning provided in section 8.1.

“Refractory Software Subscription” has the meaning provided in section 8.2.

“Release” has the meaning provided in section 8.11.

“Report” means a Refractory Software-generated statement and/or analysis based on: (a) Processed Data; (b) one or more PaneraTech observations or recommendations; and/or (c) Data Intelligence.

“Safety Recall Notice” has the meaning provided in section 6.2. 

“Sensor” means any: (a) Asset thickness or tomography sensor, laser scanner, thermal scanner, RFID tracker or any other add-on sensor, tracker or measuring device, identified in an applicable SOW; and (b) related support equipment, whether developed or provided by PaneraTech or a third party.

“Services” has the meaning provided on the Signature Page.

“Service Period” means the period or term during which Customer is provided with access to an applicable Deliverable pursuant to the applicable SOW.  By way of example, as provided in an applicable SOW, a Service Period: (a) for leasing Equipment used in Inspections may correspond to an inspection period; (b) for leasing Equipment used for monitoring refractories may correspond to a Monitoring Period; (c) for using Software may correspond to a license period; and (d) for installation of Equipment may refer to an Installation Period.  When a Service Period requires PaneraTech to be on site at a Plant, the relevant Service Period shall mean contiguous weekdays.  Each Service Period will start and finish on specific dates, as identified with particularity in the applicable SOW.  If particular start and finish dates are not identified in the SOW, the parties shall mutually agree on the same in writing, subject to availability of Equipment and PaneraTech personnel.  Once a Service Period has been set, it may not be adjusted without the prior written consent of both parties. Service Periods are not subject to adjustment if Equipment has already been shipped.  Except for delays caused by PaneraTech, a Defect in Equipment, a Force Majeure event, or delayed receipt of Equipment shipped by PaneraTech, each day that a start date or end date is delayed shall extend the Service Period and Customer shall pay to PaneraTech an additional daily fee applied on a pro rata basis based on the applicable Services fee, along with fees for any additional labor and materials provided by PaneraTech at PaneraTech’s then-current rates. 

“Setup Period” is the Service Period for Initial Setup, which begins on the Commencement Date and continues for the number of contiguous weekdays designated in the applicable SOW.

“Severity Levels” are defined in section 9.4.

“Software” means a machine readable (object code) version of a computer program, including firmware, and any copies made, bug fixes for, Updates to, or Upgrades thereof, that is made available to Customer as a licensed component of a Deliverable, whether locally or remotely, including Refractory Software.

“SOW” has the meaning provided in Part 2 of this MSA.

“Specifications” means PaneraTech documentation that describes the technical features and performance expectations of the applicable release of the applicable Refractory Software.

“Technical Support” means technical support regarding any (a) Defect, (b) failure of a Deliverable to substantially perform in accordance with Specifications, or (c) failure of PaneraTech to meet its then-current service level objectives, which affects Customer’s use of the Deliverable.

“Test Period” has the meaning provided in section 8.9.

“Testing Initiation Date” means a date, mutually agreed by the parties, to occur: (a) within 5 business days after completion of installation of an Authorized Instance in a Customer Environment; and (b) within 5 business days after account creation in the case of a Refractory Software Subscription.

“Third Party Rights” has the meaning provided in section 2.8.1.

“Undisputed” means any fee or expense that (a) was not timely disputed in accordance with the dispute process in section 2.4.3 or (b) was timely disputed in accordance with section 2.4.3 but subsequently resolved by the parties either informally or via the dispute resolution process in section 13.6.

“Update” has the meaning provided in section 8.11.

“Upgrade” has the meaning provided in section 8.11.

“Vendor” means any third party who delivers, manufactures or provides a Deliverable or a component thereof.

“Vendor Deliverable” means a Deliverable delivered, manufactured or provided by a Vendor.

Part 4 – Equipment Lease Terms

To the extent Customer purchases any Service that includes the delivery of Equipment to, or use of Equipment by, Customer, the provisions of this Part 4 apply.       

4.1        Equipment Leased, not Purchased.  Any and all IoT sensors, cables, routers, control boxes or other Equipment delivered to, or left in the possession of, Customer in connection with the MSA or any SOW for any period of time whatsoever shall be deemed leased, not purchased, during the applicable Service Period.

4.2        Location.  All Equipment is specific to a particular Asset and/or Plant.  Prior to timely return of Equipment to PaneraTech in accordance with this MSA, Customer shall at all times ensure that such Equipment remains at the Plant designated in the applicable SOW, and is used solely in accordance with this MSA with respect to the Asset(s) for which the Equipment has been delivered.

4.3        Lease Term.  Unless earlier terminated in accordance with the MSA or an applicable SOW, the term of lease of any item of Equipment is commensurate with the applicable Service Period for the related Services. 

4.4        Rent.  Rent for all items of Equipment delivered to Customer is included as part of the fees for the applicable Service connected to the Equipment; such fees are described in the applicable SOW.  If for any reason any item of Equipment has not been (a) timely returned to and received by PaneraTech within five (5) business days after expiration or termination of the applicable Service Period (if Customer is located in the USA) or (b) shipped to PaneraTech (if Customer is located outside of the USA) within 5 business days after expiration or termination of the applicable Service Period, Customer shall continue to pay applicable Service fees to PaneraTech in connection with the related Service on a pro rata basis, as if an additional Service Period for all Services related to such Equipment were added for each partial or full Service Period, from the end of the relevant expired Service Period until the Equipment is returned to PaneraTech’s possession, along with fees for any additional labor and materials provided by PaneraTech at PaneraTech’s then-current rates; provided, however, such payments shall not imply any ongoing right to retain said Equipment or use the Equipment or relevant Service.  Notwithstanding the foregoing, if Customer is prevented from timely returning Equipment to PaneraTech in accordance with this section due to the occurrence of a Force Majeure event (including strike, pandemic, or any governmental restriction preventing Customer from exporting the Equipment from Customer’s country to PaneraTech): (a) Customer shall immediately (i) notify PaneraTech in writing, and include a detailed explanation of the Force Majeure event, (ii) stop using the Equipment, (iii) store it in a suitably climate-controlled, locked and secure location at the applicable Customer Plant, and (iv) from time to time, upon request from PaneraTech, check on the ongoing secure and suitable storage of the Equipment and provide PaneraTech with reasonable assurances of the same, including in the form of updated photos; and (b) PaneraTech and Customer shall work together in good faith to find the most expeditious way for Customer to lawfully return the Equipment to PaneraTech.

4.5     Risk of Loss and Permits.  Customer shall take possession of an item of Equipment upon delivery to Customer, and shall assume the risk of loss once it takes possession of the Equipment.  At its own expense, Customer shall provide: (a) all permits, if any, necessary for installation of any original or replacement Equipment or any parts thereof; and (b) timely acquire and pay for any customs or other permits needed to import any original or replacement Equipment or other Deliverable.  PaneraTech shall cooperate with the foregoing in good faith. 

4.6        FCC and Regulatory Compliance.  Customer agrees to: (a) operate Sensors and other Equipment in compliance with the requirements of the applicable authority that regulates the use of radios and/or lasers (as applicable) in the country in which the Equipment is leased; and (b) cooperate in good faith with PaneraTech with respect to any related regulatory filings, such as those required to declare use of a radio or laser by a specified entity at a particular location.  The radio regulatory organization in the United States is the Federal Communications Commission or “FCC.”

4.7        Accessories.  Customer will not, without the written consent of PaneraTech, attach, integrate or install any accessories or devices on or in any Equipment or other Deliverable.  Any damage caused by the attachment, integration, installation or removal of any such item shall be repaired at Customer’s expense. 

4.8        Personal Property.  Equipment is, and shall at all times remain, personal property.  If all or any part of Equipment is (a) attached to, imbedded in or permanently resting upon any real property or any equipment or building thereon, or (b) attached in any manner to what is permanent, by means of cement, plaster, nails, bolts, screws or otherwise (in each case, “Attached”), the Equipment shall nonetheless remain personal property with title remaining exclusively with PaneraTech.

4.9        Title, Assignments and Encumbrances.  All Equipment shall remain personal property and title thereto shall remain in PaneraTech exclusively.  Neither any Equipment lease, nor the Customer’s rights thereunder shall be assignable except with PaneraTech’s written consent.  Customer shall not lease, sublease, mortgage or otherwise encumber or part with possession of the Equipment or any part thereof, except with the written consent of PaneraTech.  Customer shall keep the Equipment free from any and all liens and claims, and shall not do or permit any act or omission whereby PaneraTech’s title or rights may be encumbered or impaired.  Customer authorizes PaneraTech to prepare and file, at PaneraTech’s election, one or more standard UCC financing statements (or a country-specific equivalent) as may be reasonably required to put third parties on notice of PaneraTech’s title in the Equipment.

4.10      Remedies.   Without limiting any other remedies available under the MSA or any applicable SOW, or at law or in equity, at any time after a material breach of the MSA or an applicable SOW, PaneraTech may exercise  (but is not obligated to exercise) any one or more of the following remedies, in whole or in part and separately, consecutively, or concurrently: (a) upon no less than 5 days’ advance notice, enter any location where the Equipment is located, and take possession of and remove the Equipment; or (b) notify Customer to deliver, or to store and then deliver, the Equipment to PaneraTech.

Part 5 – Equipment Shipping, Inspection and Handling Requirements

5.1        Shipments from PaneraTech to Customer.  From time to time, PaneraTech will ship certain Equipment to Customer (e.g., threaded collars, collar plugs, sensors, sensor cables, control cables, beam clamps, switch boxes, control boxes, labels and/or training materials), including at the inception of a Service, and when sending replacement or refurbished Equipment in the event of Equipment that is Defective, Damaged, Depleted or subject to a Safety Recall Notice.  When doing so, PaneraTech shall: (a) provide Customer with Equipment and materials that are fully operational and in good condition and repair (except for normal wear and tear applicable to used Equipment) when shipped by PaneraTech; and (b) include in the shipment a form (“Equipment Condition Form”) that (i) certifies that the Equipment meets the foregoing standard; (ii) marks on a drawing of the Equipment any preexisting wear and tear to the Equipment; and (iii) attaches one or more photos of the Equipment taken immediately prior to the time that the Equipment was packaged.

5.2        Receipt of Shipments from PaneraTech.  

               5.2.1    Delivery and Risk of Loss.  Customer shall: (a) accept and take possession of Equipment upon delivery to Customer; (b) appropriately store the Equipment in a secure, dry and air-conditioned environment until such time as PaneraTech installs the Equipment or uses the Equipment to provide a Service, as applicable; (c) assume risk of loss when Customer takes possession of the same; and (d) timely acquire and pay for, at its own expense, any customs or other permits needed to import applicable Equipment to the country and region where an applicable Plant is located. 

5.2.2    Inspection of Equipment upon Receipt.  Within two business days after Customer takes possession of any Equipment, Customer shall: (a) inspect the Equipment for damage or tampering, including by comparing the Equipment as received to the condition of the Equipment when shipped as indicated in the Equipment Condition Form and photographs included with the shipment in accordance with section 5.1; (b) complete the Equipment Condition Form by indicating any variance between the indicated condition of the Equipment when shipped and the visible condition of the Equipment or packaging when received; and (c) countersign the completed Equipment Condition Form on behalf of Customer and email a copy to PaneraTech, along with (if applicable) one or more photos of the Equipment and packaging in order to document any variance (if any) between the condition of the Equipment when shipped and the condition of the Equipment when received. Unless Customer within that time provides such a countersigned Equipment Condition Form specifying any such variance or any other objection to the Equipment, it shall be conclusively presumed that the Customer has fully inspected the Equipment for visible damage and tampering, has found the Equipment in visibly good condition and repair, and has accepted that the Equipment is not visibly damaged or tampered with (this presumption does not include any hidden defects or prevent Customer to claim any right due to such hidden defects of the Equipment which cannot be identified or are not detectable at the time of the inspection). 

5.2.3    Handling Equipment.  Except as may otherwise be expressly set forth in this MSA or an applicable SOW, or permitted by PaneraTech in a signed writing, neither Customer nor any third party shall handle the Equipment other than as needed to inspect, store or package and return the Equipment to PaneraTech, all in accordance with this MSA.  When inspecting, storing, packaging or shipping the Equipment, Customer shall: (a) do so in a careful, proper and lawful manner; (b) not permit the Equipment to be neglected or abused or to be used for any purpose for which it is not designed or intended; (c) comply with all instructions, manuals and guidelines relating to the transportation, possession, use, or maintenance of the Equipment; (d) not violate any warranty, maintenance agreement or insurance policy covering the Equipment; and (e) keep affixed all PaneraTech or manufacturer supplied labels, plates, safety equipment, warning or other markings in a proper and appropriate place on the Equipment. 

5.2.4    Storing Equipment.  When storing any Equipment, such as between the time that Customer receives and PaneraTech installs or uses Equipment, Customer shall: (a) store the Equipment at the applicable Customer Plant in a secure and locked room that is climate-controlled and suitable for the storage of sensitive, proprietary electronics; (b) ensure that the Equipment is not moved, used, examined or otherwise disturbed; and (c) from time to time, upon request from PaneraTech, check on the ongoing secure and suitable storage of the Equipment and provide PaneraTech with reasonable assurances of the same, including in the form of updated photos.

5.3        Shipments from Customer to PaneraTech. Before shipping any Equipment back to PaneraTech, Customer shall first: (a) create a comprehensive inventory of all such Equipment; (b) provide PaneraTech’s technical point of contact with a copy of the inventory, along with a photograph of each and all Equipment to be shipped taken immediately prior to the time that the Equipment was packaged and a completed Equipment Condition Form that marks on a drawing of the Equipment any preexisting wear and tear to the Equipment; and (c) carefully pack the Equipment so as to protect it from damage of any kind, at least to the standard by which the Equipment was packed by PaneraTech when received by the Customer.  Within two business days of its receipt of any Equipment from Customer, PaneraTech shall: (i) notify Customer of the same, and (ii) notify Customer if any Equipment is not in visibly good condition and repair.  Unless PaneraTech within that time flags any Equipment that is not in visibly good condition and repair, it shall be conclusively presumed that PaneraTech has fully inspected the Equipment for visible damage, has found each item of Equipment to be in visibly good condition and repair, and has accepted that each item of Equipment is not visibly damaged.

5.4        Shipping Expenses. 

5.4.1    Shipping and Insurance.  When shipping any Equipment back to PaneraTech for any purpose,  Customer shall, at its own expense (unless such expense is expressly included in an applicable SOW): (a) do so via a pre-paid, insured, reputable domestic or international courier, as applicable; (b) insure each item of Equipment for no less than Fifty Thousand US Dollars ($50,000 USD); (c) immediately provide PaneraTech (via email) with an applicable tracking number for each shipment upon delivery of possession of the Equipment to the courier; and (d) acquire any customs and other permits needed to do so.

5.4.2    Reimbursement of Shipping and Insurance by PaneraTech.  If Customer ships Equipment back to PaneraTech because (a) it is Defective, Damaged by PaneraTech or Depleted or subject to Safety Recall Notice or Enhancement Notice or (b) due to termination of the applicable SOW by Customer due to PaneraTech’s failure to timely cure a material breach of the SOW, PaneraTech shall reimburse Customer for its reasonable, out-of-pocket return shipping costs incurred in accordance with section 5.4.1.  

5.5        Removing Attached Equipment. Unless otherwise expressly permitted by this MSA or PaneraTech in a signed writing, Customer shall neither attach any Equipment to, nor remove any Equipment from, any Furnace.  Upon termination or expiration of an applicable Service Period, Customer shall pay PaneraTech to remove the applicable Equipment subject to  PaneraTech’s then-current prices and expenses, which: (a) are, as of the Effective Date, $1,000 per day per person, plus actual travel and logistics expenses and (b) shall not be increased by more than the percentage increase (if any), as compared to the previous year, in the higher of: (a) the CPI-U; or (b) the HICP.  To enable such removal, Customer shall provide PaneraTech with reasonable access to all applicable Plants and Furnaces containing Equipment to enable PaneraTech to safely remove all such Equipment.  Customer shall provide such access within a reasonable and practical time period from the date of termination or expiration, not to exceed 14 days from the effective date of termination or expiration, or as otherwise agreed by Customer and PaneraTech in writing.

Part 6 – Repair or Replacement of Equipment

that is Defective, Damaged, Depleted or Subject to a Safety Recall Notice

6.1        Repair or Replacement.  During an applicable Service Period for any Service that includes the delivery of Equipment, PaneraTech will ship to Customer either new or refurbished (in PaneraTech’s sole discretion) hardware to replace any Equipment leased by PaneraTech to Customer which is Defective, Damaged, Depleted, subject to a Safety Recall Notice, no longer compliant with PaneraTech standards or Lost or Stolen, subject to receipt from Customer of payment for Repair or Replace Fees payable in the case of Equipment that has been Damaged by Customer or Lost or Stolen.  Promptly after receipt of any such replacement Equipment, Customer shall be responsible for installing the same with remote guidance from PaneraTech.  Should installation require PaneraTech to send an engineer to install replacement Equipment, Customer will reimburse PaneraTech for all of its: (a) reasonable travel, lodging and living expenses; and (b) labor costs, at PaneraTech’s then-current rates.

6.2        Safety Recall Notices and Enhancement Notices.  PaneraTech reserves the right to require the repair or replacement of any Equipment in order to improve safety by providing no less than ten days’ written notice to Customer prior to such repair or replacement (a “Safety Recall Notice”), or to enhance improvement of such Equipment (an “Enhancement Notice”).  If PaneraTech recalls any Sensor or other Equipment, Customer shall: (a) immediately stop use of such Equipment; and (b) return such Equipment to PaneraTech within fourteen days of receipt of the Safety Recall Notice or Enhancement Notice, in accordance with PaneraTech instructions and Part 5. PaneraTech will ship new, refurbished or repaired Equipment to replace recalled Equipment within fourteen days of receipt of such recalled Equipment from Customer, in accordance with Part 5.  PaneraTech will reimburse Customer for reasonable shipping costs related to a Safety Recall Notice or Enhancement Notice in accordance with section 5.4.2.

6.3        Equipment Issue Notices.  Either party may provide the other party with written notice of Equipment that is either Defective, Damaged or Depleted, or Lost or Stolen (an “Equipment Issue Notice”). 

6.3.1    Equipment Issue Notices due to Defective, Damaged or Depleted Equipment. If either party identifies any Defect in, Damage to, or Depletion of, a Sensor or other Equipment which is affecting or may affect the performance of such Equipment, and provides an Equipment Issue Notice, Customer shall: (a) immediately stop use of such Equipment; and (b) return such Equipment to PaneraTech within fourteen days of its receipt (when issued by PaneraTech) or issuance (when issued by Customer) of the Equipment Issue Notice, in accordance with PaneraTech instructions and Part 5.  In the case of Equipment which is either (a) Defective (b) Damaged by PaneraTech or (c) Depleted, PaneraTech shall reimburse Customer for its reasonable, out-of-pocket return shipping costs in accordance with section 5.4.2.   In the case of Equipment which is Damaged by Customer or being returned to PaneraTech upon termination (in a scenario where such termination occurred due to any breach or failure of Customer under the applicable SOW and/or Agreement) of an applicable SOW, Customer shall (i) be responsible for all applicable return shipping costs and (ii) pay applicable Repair or Replace Fees to PaneraTech in accordance with this Part 6.  For Equipment that is Damaged by Customer, Repair or Replace Fees shall apply to the foregoing in accordance with this Part 6, and shall be paid by Customer within fourteen days of receipt of the Equipment Issue Notice.  PaneraTech will ship new, refurbished or repaired Equipment to replace the Defective, Damaged or Depleted Equipment within fourteen days of the latter to occur of receipt from Customer of: (a) the Defective, Damaged or Depleted Equipment; or (b) Repair or Replace Fees, if applicable. 

6.3.2    Equipment Issue Notices due to Lost or Stolen Equipment.  In the event of any Equipment that is Lost or Stolen, Customer shall immediately: (a) issue an Equipment Issue Notice; (b) conduct a thorough internal investigation; (c) file a police report regarding the same and provide reasonable assistance to the police in connection with its investigation; (d) provide PaneraTech with a copy of the police report, as well as periodic updates regarding any police investigation; and (e) pay applicable Lost or Stolen fees to PaneraTech within fourteen days after issuance of the Equipment Issue Notice.  PaneraTech will ship new, refurbished or repaired Equipment to replace the Lost or Stolen Equipment within fourteen days after the latter to occur of receipt from Customer of: (i) the applicable Lost or Stolen fees; or (ii) a copy of the police report.

6.4        Shipment, Delivery and Inspection Process.  The parties shall engage in the shipment, delivery and inspection process described in Part 5 in order to accurately track and record the visible condition of all Equipment at the time of shipping and receipt by a party.  Per-item Equipment costs due and payable from Customer to PaneraTech in the event of any Equipment which is either (a) Damaged by Customer or (b) Lost or Stolen are set forth below, and subject to annual USA CPI adjustments.

Part 7 –  Ownership, License and Use of Data and Reports

7.1        Customer-Provided Data.  Customer-Provided Data is customer data that is the property and confidential information of Customer, and provided to PaneraTech for processing in connection with an SOW, either as data: (a) entered manually by Customer into an Authorized Instance (such as from employee observations concerning a Designated Asset or data collected from a third party sensor); or (b) collected electronically by an Authorized Instance from a database owned or controlled by Customer.   Once processed by PaneraTech’s proprietary Refractory Software, during an applicable Service Period, Customer-Provided Data may be: (a) made available to Customer as part of the Processed Data in accordance with an applicable SOW; and (b) viewable by Customer on a computer or tablet monitor or as a printed or electronic Report.

7.2        Raw Data and Data Intelligence.  Raw Data is unprocessed data that is coded in a proprietary format based on algorithms that are proprietary and confidential to PaneraTech.   Raw Data is collected in a format that is based on algorithms and processes that are proprietary and confidential to PaneraTech; thus, Raw Data will not be made available to Customer.  Data Intelligence is data that is proprietary and confidential information of PaneraTech or a third party, and may be gleaned either from third party sources or through PaneraTech’s analysis of Deidentified Data.

7.3        Processed Data.    Processed Data made available to Customer may include, integrate and/or be based upon: (a) Customer-Provided Data that has been processed by PaneraTech’s proprietary Refractory Software; (b) data based on Raw Data; and/or (c) Data Intelligence.

7.4        License to Use Customer-Provided Data. Customer grants to PaneraTech a limited, non-exclusive and royalty-free license to reproduce, modify, adapt, translate, publish, perform, display and distribute Customer-Provided Data and Confidential Information of Customer solely in order for PaneraTech to: (a) make Processed Data, Reports and each Authorized Instance available to Customer and perform the Technical Support and other functions and services provided under the MSA and applicable SOW(s) during each applicable Service Period; (b) comply with applicable law and any governmental investigation; and (c) improve and develop new functionality, Deliverables and Data Intelligence, provided that PaneraTech does so in an aggregated and anonymized or pseudonymized way that does not identify Customer or any Asset or Plant to any third party.  Customer represents and warrants that it has all rights necessary to grant the foregoing license to PaneraTech.

7.5        License to Use Processed Data.  PaneraTech grants to Customer during each applicable Service Period a limited, non-exclusive license solely for internal purposes, to: (a) query, extract and store applicable Processed Data; and (b) generate, store and print Reports.

7.6        Customer’s Post-Termination Access to Processed Data.  Upon receipt from a Customer of a signed confirmation of removal and destruction of Confidential Information in accordance with section 9.6.5, if Customer held a Refractory Software Subscription PaneraTech will: (a) provide Customer with a copy in PDF or Microsoft Excel format of all Processed Data made available by the Refractory Software during the twelve month period preceding termination, as part of the applicable terminated Services and Deliverables; (b) erase all Processed Data and Raw Data of Customer (but not Deidentified Data) from the PaneraTech Environment; and (c) upon Customer’s request, furnish Customer with written confirmation of such erasure reasonably satisfactory to Customer.  For clarity, notwithstanding the foregoing, Customer shall not be required to remove or destroy copies of any Reports generated by Software, provided that Customer continues to limit sharing of such Reports to its employees and Affiliates and Asset repair contractors in accordance with section 2.6.4.  Also, should Customer notify PaneraTech that it wishes for PaneraTech to deliver Processed Data pursuant to subpart 7.2(a) above in a format other than PDF or Microsoft Excel format, PaneraTech and Customer shall work in good faith to generate a SOW pursuant to which PaneraTech will convert the applicable Processed Data into a mutually agreeable format, subject to PaneraTech’s then-current hourly engineering rates.

Part 8 – Refractory Software Licenses, Subscriptions and Releases

This Part 8 applies only to the extent a Deliverable provides Customer with access to Refractory Software, whether in a Customer Environment or a PaneraTech Environment.

8.1        License: When Refractory Software is Installed in a Customer Environment.  This section applies only to the extent an applicable SOW designates that Refractory Software will be installed in a Customer Environment.  During an applicable Service Period, PaneraTech grants to Customer a limited, non-exclusive, non-transferable and revocable license (the “Refractory Software License”) to access and run an Authorized Instance in the Customer Environment, in a manner consistent with the ordinary operation of the applicable Refractory Software’s functionality.

8.2        Subscription: When Customer Remotely Accesses Refractory Software.  This section applies only to the extent an applicable SOW designates that Customer will remotely access Refractory Software from a PaneraTech Environment.  During an applicable Service Period, PaneraTech grants to Customer a limited, non-exclusive, non-transferable and revocable right (the “Refractory Software Subscription”) to remotely access (via a Designated Endpoint) an Authorized Instance in a PaneraTech Environment, in a manner consistent with the ordinary operation of the applicable Refractory Software’s functionality.

8.3        Software Use Term; Limitations.  Each Refractory Software License and Refractory Software Subscription will terminate on the earlier to occur of expiration or termination of the applicable Service Period, the applicable SOW or the MSA.  Customer’s use of each Authorized Instance is subject to the AUP.  The resale, lease or any other kind of sharing of Reports generated by Refractory Software or other Refractory Software-related Documentation with third parties is prohibited, except as otherwise expressly permitted in section 2.6.4.  Each Authorized Instance and any and all other Software (and related Documentation) delivered or made available to Customer is licensed, not sold; PaneraTech reserves any and all intellectual property and other rights therein, except to the extent of a current and applicable Refractory Software License or Refractory Software Subscription.  Customer acknowledges that all Refractory Software and each Authorized Instance are proprietary to, and include valuable trade secrets of, PaneraTech or its suppliers or licensors, including the specific internal design and structure of individual programs and associated interface information.  Customer shall not transfer, assign, sublicense, lease or otherwise share any Authorized Instance or Designated Endpoint to/with any other person or entity; any attempted transfer, assignment, sublicense, license or other type of sharing shall be void.  

8.4            Refractory Software Generates Estimates, not Absolutes.  Predictions, projections, refractory failure insights and indicators, and other assessments generated by Refractory Software are merely estimates based on refractory wear models built by PaneraTech for refractories which are similar to those used in the construction of the relevant Designated Asset.  Changes made by or on behalf of a Customer to a Designated Asset, a related database or a Sensor could affect one or more projections and recommendations generated by Refractory Software, such as changes in the average operating temperature of a Designated Asset or other changes to a Designated Asset’s process parameters, changes in refractories and initial thicknesses. Thus: (a) Refractory Software-generated predictions, projections, insights, indicators and other assessments are intended to supplement, not to replace or act as a substitute for, a comprehensive, industry-standard Asset monitoring program; (b) PaneraTech does not and cannot guarantee any Designated Asset’s health at any given moment in time; and (c) Customer is solely responsible for any and all (i) Asset Consequences, (ii) uses of any Authorized Instance in connection with one or more third party or Customer Sensors, systems, applications or other products or services not developed or owned by PaneraTech, and (iii) uses of any Customer-Provided Data generated by any third party or Customer Sensor, system, application or other product or service not developed or owned by PaneraTech, in connection or in combination with any Refractory Software.  Customer shall defend, indemnify and hold PaneraTech, its Affiliates and applicable Vendors, and  their respective officers, directors, agents and employees harmless from any and all intellectual property, personal injury and other claims, losses, damages, judgments, expenses and costs (including attorneys’ fees and expenses) arising in connection with any of the responsibilities accepted by Customer in subpart (c) of the preceding sentence. 

8.5        Minimum Technical Standards, Generally.  Customer has been made aware of, and is responsible for meeting, PaneraTech’s current minimum technical standards for use of the applicable Refractory Software (“Minimum Technical Standards”), including minimum required internet speeds, supported browsers and technical standards for any Customer Environment or other Customer-controlled or other local system or utility.  Customer is likewise responsible for meeting, PaneraTech’s future minimum technical standards, provided that (a) PaneraTech provides Customer with no less than 30 days’ notice of such future standards, and (b) the parties work in good faith to discuss a reasonable timeline for implementation.

8.6        Requirement for Authorized Instances installed in a Customer Environment.  This section applies to Authorized Instances installed in a Customer Environment:

8.6.1    Installation.  For each Authorized Instance installed in a Customer Environment, installation, maintenance and support require Customer’s reasonable assistance and collaboration.  For instance, upon commencement of the applicable Installation Period, PaneraTech and Customer’s implementation team will meet via phone or video call to: (a) agree on the Installation Date; (b) review testing standards for the applicable Refractory Software; and (c) review Minimum Technical Standards.  With Customer’s assistance, including the provision of remote access, during the Installation Period PaneraTech will install and configure each Authorized Instance.

8.6.2    Minimum Security Standards.  During the term of the Refractory Software License and at all times prior to its certification of destruction of each Authorized Instance in accordance with section 8.6.5, Customer shall: (a) maintain a comprehensive security program with respect to the Customer Environment and all software programs installed on it (including the Authorized Instance) that includes administrative, technical, and physical safeguards designed to (i) ensure the security and confidentiality of those programs and related data, (ii) protect against any anticipated threats or hazards to the security or integrity of those programs, and (iii) protect against, and promptly respond to, unauthorized access to or use of those programs; (b) implement and maintain an incident response program; (c) assist in the identification of persons who commit or attempt such actions and crime; (d) conduct an annual penetration scan of the Customer Environment and the environment from which Customer accesses the Customer Environment; (e) conduct annual risk assessments to identify threats to the Customer Environment; and (f) upon PaneraTech’s written request, promptly provide a copy of the then most current version of any applicable ISO or AICPA SOC 2 reports or other audit reports conducted by an independent auditor (or executive summary of the report) addressing the security of the Customer Environment.  Customer shall promptly notify PaneraTech of the nature and extent of any unauthorized access to the Authorized Instance or any report generated by the Authorized Instance, and the corrective action taken in response.

8.6.3    Minimum Technical Standards.  Minimum Technical Standards may require Customer to provide, install and/or maintain one or more third party Vendor utilities, solutions or services, such as specified: (a) minimum required internet speeds; (b) supported internet browsers; (c) database management systems; (d) a solution that provides PaneraTech with information about the health and performance of an Installed Instance; and (e) micro services and Kubernetes and other cloud enabled third party services.

8.6.4    Remote Access to Customer Environment.  Customer shall provide PaneraTech with remote access to the Customer Environment and each Authorized Instance, on an as-needed basis, such as to enable PaneraTech to: (a) assist Customer with initial installation of each Authorized Instance; (b) install bug fixes and other software Updates; and (c) provide Technical Support.

8.6.5    Deletion and Destruction of Software installed in a Customer Environment.  No later than 30 days after any expiration or termination of the applicable Service Period, for all applicable Refractory Software Licenses Customer shall: (a) permanently delete and destroy each Authorized Instance (and any other copies of the applicable Refractory Software in its possession or control) in accordance with industry standards using secure data destruction techniques; and (b) provide PaneraTech with written certification thereof, in a form acceptable to PaneraTech, signed by an authorized officer of Customer.  Prior to deletion and destruction of an Authorized Instance from the Customer Environment, Customer may use the Authorized Instance to generate an electronic copy of all Processed Data recorded as part of the applicable terminated Services and Deliverables, in a format readable by Customer using generally available third party software, such as a PDF reader.

8.7        Access Management.  Customer is solely responsible for: (a) each Customer Environment; (b) the security and use of all Administrator and other End User account credentials; and (c) all access to and use of the Authorized Instance, directly or indirectly, through the Administrator or other End User accounts or account credentials, with or without knowledge or consent of an End User.  For each End User, the Administrator must: (i) create a unique user name that meets minimum PaneraTech standards; (ii) require a complex password that meets minimum PaneraTech standards; (iii) require multi-factor-authentication; and (iv) ensure that the End User is accurately identified to PaneraTech.  To the extent that a Technical Support issue or other problem is attributable to a Customer Environment or any other Customer system (e.g., local internet or power) or an End User (e.g., forgotten user name and/or password credentials), Customer will promptly use commercially reasonable efforts to correct the same, such as by causing the Customer Environment or other Customer system to perform in accordance with its specifications.

8.8        Backups.   While Customer remains solely responsible for storing and maintaining its own data backups, PaneraTech creates its own, independent backup of data stored in the PaneraTech Environment pursuant to Refractory Software Subscriptions as frequently as once every twenty-four hours.

8.9        Testing.  Over the course of a 5 business day period commencing on an applicable Testing Initiation Date (the “Test Period”), Customer shall test the Authorized Instance, and PaneraTech shall provide input and advice with respect to the same as reasonably requested by Customer. The parties’ mutual objective will be to accomplish the following prior to expiration of the Test Period: (a) for Customer to test the Authorized Instance to ensure that it substantially complies with Specifications; and (b) for Customer to provide PaneraTech with written notice prior to expiration of the Test Period should the Authorized Instance fail to substantially comply with Specifications.  If Customer provides written notice prior to expiration of the Testing Period that the Authorized Instance failed to substantially meet Specifications, the Parties shall mutually address any failure of the Authorized Instance to substantially meet Specifications, and the Testing Period shall start anew.  If Customer fails to provide written notice prior to expiration of any Testing Period that the Authorized Instance failed to substantially meet Specifications, the Authorized Instance shall be deemed accepted by Customer. 

8.10      Train the Trainer.  On a mutually agreeable date after acceptance of an Authorized Instance, PaneraTech will provide a single, remote training session on use of the applicable Refractory Software.  Any additional training must be coordinated through PaneraTech and will be charged on an hourly basis at PaneraTech’s then-current price.

8.11      Releases, Updates and Upgrades. 

8.11.1  Releases. PaneraTech may, in its sole discretion, change, add or discontinue Refractory Software or any component thereof from time to time, including by periodically releasing bug fixes and other minor and major versions and releases (each, a “Release”) 

8.11.2  Updates.  For periodic bug fixes and other Releases that PaneraTech makes generally available in the ordinary course for existing software versions then in use by Customer or other existing customers without an additional fee (“Updates”): (a) PaneraTech shall make the Release available to Customer for a designated Test Period in accordance with section 8.9; (b) Customer shall test such Release during the Test Period; and (c) at the conclusion of the applicable Test Period (i) Customer shall terminate access to the Prior Release (in the case of a Refractory Software License) and (ii) PaneraTech shall terminate Customer access to the Prior Release (in the case of a Refractory Software Subscription), and deploy the Release, as follows:

• “Major Release” means a Release that (A) requires material changes to Customer’s architecture (in the case of a Refractory Software License), or major new features or functionality in addition to the original functional characteristics of the Prior Release, and/or requires Customer to train personnel; and (B) is released during the normal course of development. The Testing Period for a Major Release shall be 15 calendar days unless the Parties otherwise agree.

• “Minor Release” means a Release that (A) includes maintenance fixes or additional, non-material features in addition to the original functional characteristics of the Prior Release; and (B) is released during the normal course of development. The Testing Period for a Minor Release shall be 5 calendar days unless the Parties otherwise agree. 

• “Emergency Release” means a Release which PaneraTech reasonably deems necessary to be immediately deployed to address: (a) a material failure of the Prior Release to perform in accordance with PaneraTech’s published documentation; (b) a security issue or third party legal requirement; or (c) any other issue PaneraTech reasonably determines must be addressed immediately. Should an Emergency Release require material changes to Customer’s environment (in the case of a Refractory Software License), the Parties will agree upon a time period for deployment that is commercially reasonable under the circumstances. 

8.11.3  Upgrades.  Any Release that includes new functionality and represents a significant change or major improvement to an existing Deliverable, or a wholly-new product or service, such as any new Refractory Software or other Software module, customization, or other work or Deliverable outside the scope of an Authorized Instance, is an “Upgrade.”  Upgrades do not constitute Updates, are made available subject to an additional fee, and, must be addressed in a separate SOW.  Any and all customizations and other work outside the scope of an Authorized Instance which may be requested by Customer (e.g., moving an Authorized Instance to a new or revised Customer Environment; moving from a Refractory Software Subscription to a Refractory Software License; moving from a Refractory Software License to a Refractory Software Subscription) shall be in the sole and absolute discretion of PaneraTech.

Part 9 – Customer and Technical Support

9.1        Scope of Support. During the Service Period for an applicable Deliverable, subject to timely payment of fees, Customer is entitled to Technical Support with respect to those Deliverables during Business Hours.  Technical Support includes: (a) software bug fixes and maintenance Updates made generally available by PaneraTech for Refractory Software licensed to Customer; and (b) Equipment repair or replacement in accordance with Part 5.

9.2        Support Tickets.  All Technical Support requests must be submitted by the Designated Technical Representative via PaneraTech’s then-current customer service portal.  In the event that Customer requires Technical Support, Customer will: (a) first consult PaneraTech’s available self-support resources; and (b) second, promptly submit appropriate Technical Support requests to PaneraTech through the Designated Technical Representative(s), in accordance with PaneraTech’s support request process and include information sufficient for PaneraTech to understand, re-create and analyze the issue. Customer may replace its Designated Technical Representative upon notice.

9.3        Technical Support Standards.  After receiving a Technical Support request from Customer concerning a Defect in an Authorized Instance, PaneraTech will promptly use commercially reasonable efforts during Business Hours in accordance with the chart below to cause the Authorized Instance to perform in accordance with its Specifications.  To the extent that a Technical Support issue or other problem is attributable to one of Customer’s employees (e.g., lost user name and/or password credentials) or a Customer owned or controlled network, utility, system or other resource (e.g., problems with the Customer Environment), Customer will promptly use commercially reasonable efforts in accordance with the chart below to correct the same, such as by causing the applicable Customer resource to perform in accordance with its specifications.

* In the case of Refractory Software installed in a Customer Environment, timeframes noted above are measured from the time that the Customer gives PaneraTech remote access to the Customer Environment.

• “Severity Level 1 (Urgent)” means problems which cause the Authorized Instance to be unavailable or non-responsive, and no known procedural work-around exists.

• “Severity Level 2 (High)” means the Authorized Instance is available and functioning, but problems reduce Customer’s ability to use the Authorized Instance, with a high impact on Customer and no known procedural work-around exists.

• “Severity Level 3 (Medium)” means the Authorized Instance is available and functioning, but minor problems partially reduce Customer’s ability to use the same, with a non-critical impact on Customer. Severity Level 1 and Severity Level 2 issues will be downgraded to Severity Level 3 when a workaround which does not materially slow or otherwise adversely affect operations is provided and a permanent solution is not yet available.

• “Severity Level 4 (Low)” means feedback and suggestions concerning Refractory Software that are more forward-thinking than actual business needs, or cosmetic. Examples include any special request that requires the scheduling of resources for modifications or enhancements.  PaneraTech will address concerns of this nature with respect to Refractory Software in its discretion.

• Severity Level designations concerning a Customer Environment or other Customer owned or controlled resource are made by Customer; Severity Level designations concerning Refractory Software or a PaneraTech Environment are made by PaneraTech.

9.4        Assistance Outside the Scope of Support. If Customer would like PaneraTech to provide assistance or services outside the scope of Technical Support, such as (a) on-site Technical Support or travel, (b) production of a customized report, (c) training, data analysis, custom development or other professional services, the parties may choose to execute a mutually agreeable SOW which defines the scope of work and deliverable(s), payable at PaneraTech’s applicable hourly rates.

Part 10 – Plant and Safety Requirements for Equipment; Insurance

10.1      Prior to Setup Periods and Whenever PaneraTech is On Site.  Within a reasonable time prior to each applicable Setup Period, and during any other period in which a PaneraTech employee or representative is on site at a Plant: (a) Customer will make each such employee or representative aware of, and provide them with a copy of, all of Customer’s applicable rules for Plant visitors, including those relating to safety and security; and (b) PaneraTech will require those PaneraTech employees or representatives to comply with such rules, provided that they do not violate applicable laws.  In the event any such policy not included in the applicable SOW materially impacts PaneraTech’s ability to provide Deliverables, PaneraTech shall notify Customer or its Affiliate after being made aware of such Customer Plant policy and the parties shall thereafter promptly negotiate in good faith any revisions to the SOW.

10.2  During Setup Periods and Whenever PaneraTech is On Site (Generally). During each applicable Setup Period, and during any other period in which a PaneraTech employee or representative is on site at a Plant, Customer shall: (a) ensure full access (as permitted during normal operations) to applicable Asset(s) and appropriate parts of the Plant as needed to provide an applicable Deliverable; (b) ensure that Plant personnel who will be interacting with PaneraTech on a regular basis are available and speak conversationally fluent English; (c) provide temperature-controlled office and meeting space with sufficient Internet connectivity for PaneraTech personnel to rest and conduct necessary in-office activities, such as training; (d) provide necessary projector equipment for training presentations; (e) provide a safe working environment, flag to PaneraTech personnel and take all necessary steps to ensure safety in the context of any high-risk furnace areas (e.g., furnace hotspots) or other indicators of danger, and be responsible for the safety of PaneraTech personnel visiting the Plant (provided such persons follow Customer’s safety rules which have been provided to PaneraTech personnel in advance); (f) provide access to a low-pressure compressed airline for active cooling of the Sensors, if necessary; and (g) provide PaneraTech with wireless Internet access;

10.3  During Setup Periods and Whenever PaneraTech is On Site (SmartAudit Services). In addition, during any period in which a PaneraTech employee or representative is on site at a Plant in connection with the provision of SmartAudit Services, Customer shall: (a) provide access to a cold water line and water hosing for active cooling of the Sensors or other Equipment, if necessary; (b) provide PaneraTech personnel with safe access to all catwalks, platforms and other areas necessary for such personnel to view 100% of the exterior of each Asset, including each Asset’s regenerator, throat, refiner/distributor and forehearth; (c) if required for inspection below a furnace bottom, implement electrical boosting downtime and coordinate with PaneraTech personnel concerning optimal scheduling of such downtime; (d) if Services include use of a traditional photography endoscope or digital endoscope with laser or other sensors, for about 2 minutes implement a “no fire” period (when furnace burners are shut off) per peephole in an applicable Asset to enable maximum visibility for endoscope photography or digital laser thickness mapping and coordinate with PaneraTech personnel concerning optimal scheduling of each “no fire”; and (e) provide a safe and sufficient staging area from which PaneraTech personnel may work.

10.4      Utility Requirements.  At all times, Customer will provide and maintain to each Deliverable uninterrupted: (a) power; (b) high-speed internet access; and (c) cooling to any control box and switch box, if necessary.

10.5      Safety Procedures. When in possession or control of any Equipment, Customer agrees that: (a) Customer shall at all times operate sensors and other Equipment within safety guidelines provided in the applicable manual for the Sensor or other Equipment; (b) Sensors are not to be operated near or on any blocks that are directly connected to electric boosting equipment while the electric boosting is on; (c) Sensors are not to be operated on surfaces that are rated for a higher temperature than the safe temperature range of the Sensor; (d) Sensors are not to be operated once the temperature for the Sensor operation reaches its designated limit; (e) Sensors are not to be operated on surfaces where there is water; (f) Customer must immediately cease the operation of any Sensor in any area where there is imminent threat to the operator or the Sensor; and (g) Sensors cannot be handled or operated by any person except a Customer employee who has been trained and certified by PaneraTech for use of the Sensor in question.

10.6      Insurance.  During any period in which a PaneraTech employee or representative is on site at a Plant, PaneraTech shall maintain the following insurance: (1) Workers’ Compensation Insurance (statutory maximum at job site location) and Employees Liability Insurance; and (2) Comprehensive General Liability Insurance (at least $2,000,000.00 per occurrence) including premises-operation, independent contractors, products completed operations hazard with contractual coverage. Upon Customer’s written request, PaneraTech shall furnish to Customer copies of insurance certificates evidencing compliance with the foregoing.

Part 11 – Acceptable Use Policy

11.1      Overview.  This Acceptable Use Policy (“AUP”) identifies activities and content that are prohibited on, through or in connection with Customer’s use of any platform, system, network, website, product, Report, tool, service or other Deliverable (each, a “Digital Asset”) made available by or on behalf of PaneraTech.  This AUP is not exhaustive and PaneraTech may modify this AUP from time to time, in its sole discretion.  By accessing or using any Digital Asset, you accept the most recent version of this AUP and agree to use a Digital Asset only in a manner consistent with this AUP.  Any use, activity or content which violates this AUP may result in deletion of non-compliant content, and/or the suspension or termination of Customer’s ability to access or use an applicable Digital Asset, and constitutes a breach of Customer’s agreement with PaneraTech.

11.2      Content Prohibited on any Digital Asset.  You agree not to upload, transmit, communicate, distribute, post or otherwise use or make publicly available any text, comments, documents, images, photographs, graphics, videos, movies, audio files or other materials or content, regardless of media or format, which in any way:

• consists of or contains any information or content that violates any law, rule, regulation, ordinance or order, or encourages any conduct that violates any law, rule, regulation, ordinance or order;
• contains any information or content deemed by PaneraTech to be hateful, violent, harmful, abusive, racially or ethnically offensive, defamatory, invasive of personal privacy or publicity rights, harassing, tortious, humiliating to other people (publicly or otherwise), threatening, intimidating, profane, obscene, pornographic, indecent, or otherwise objectionable;
• infringes, violates or (if used) may infringe or violate any third party’s copyright, trademark, trade secret, patent, privacy rights, publicity rights, or other intellectual property, personal or proprietary rights;
• is fraudulent, false, misleading, or deceptive;
• comprises or includes any “junk mail”, “spam”, “chain letters”, “pyramid schemes”, or any similar form of solicitation;
• may damage, interfere with, surreptitiously intercept, expropriate, or otherwise gain unauthorized access to or use of a Digital Asset or any other website, system, program, database or data; or
• consists of or includes third party advertising, marketing materials, links or commercial materials not approved by PaneraTech.

11.3      Other Prohibited Uses of a Digital Asset. A Digital Asset may be used only for lawful purposes and activities which are otherwise not harmful or offensive to PaneraTech or others, as determined by PaneraTech in its sole discretion.  Without limiting the generality of the foregoing, without the express written permission of PaneraTech, neither you nor any of Customer’s employees or agents may use a Digital Asset, directly or indirectly, to:

• infringe or violate the intellectual property or proprietary rights of PaneraTech or others;
• invade the privacy of or violate the privacy rights of others, or violate any person’s rights of publicity;
• solicit or collect personally identifiable information;
• provide false or inaccurate information, impersonate any other person or entity, or falsely state or otherwise misrepresent Customer’s identity, age, or affiliation with any other person or entity;
• engage in fraud, identity theft, or any other deceptive activity or unlawful conduct;
• upload, post, transmit or distribute viruses, worms, Trojan horses or any other malicious code that may damage, impact, gain unauthorized access to or interfere with the operation of a Digital Asset or any server, computer, system, database, data or Deliverable; or
• display or facilitate the display of third-party advertising or marketing materials or any commercial content not approved by PaneraTech.
• engage in any activities that may be harmful or offensive to PaneraTech or others;
• use a Digital Asset for any commercial purpose, or for the benefit of any third party, except pursuant to a written agreement with PaneraTech;
• use a Digital Asset in contravention or breach of a fiduciary or contractual duty;
• mirror or frame a Digital Asset or any individual element within a Digital Asset;
• use, reproduce or display any PaneraTech trademarks, service marks, logos or other proprietary information without the express written consent of PaneraTech;
• attempt to access, search, scrape, download or copy a Digital Asset or any software, content or data, through the use of any engine, software, tool, agent, device or mechanism other than the software and/or search agents provided by PaneraTech or other generally available browsers, except as authorized by PaneraTech in writing or through policies published on the applicable Digital Asset (e.g., a robots.txt file);
• access, attempt to gain access to, or use non-public areas of a Digital Asset, including any connected servers or databases;
• probe, scan, or test the vulnerability of a Digital Asset;
• avoid, bypass, impair, circumvent or otherwise breach or attempt to breach any security or authentication measures of a Digital Asset;
• attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide a Digital Asset;
• interfere with or disrupt a Digital Asset or servers or networks connected to a Digital Asset;
• engage in excessive usage of a Digital Asset, as determined by PaneraTech in its sole discretion, including usage that adversely affects the speed, responsiveness, or functionality of the Digital Asset, or disrupts the availability of a Digital Asset for other users.
• send any unsolicited or unauthorized electronic mail, advertising messages, promotional materials, junk mail, chain letters or other form of solicitation; or
• violate any international, federal, state or local law, rule, regulation, ordinance or order, including those regarding defamation, pornography, or obscenity.

11.4      Investigation/Reporting Of Violations.  PaneraTech reserves the right, but is not obligated, to investigate any violation of this AUP and/or remove or prevent access to any materials or content on a Digital Asset for any reason or for no reason, including any materials or content that PaneraTech believes violates this AUP or any other agreement.  PaneraTech may also report any activity that we suspect violates any law, rule, regulation, ordinance or order to the appropriate law enforcement agencies, regulators, or other appropriate governmental authorities or third parties.  You agree that PaneraTech may cooperate with any governmental authority in connection with any investigation into the use of a Digital Asset and may disclose any information pertinent to such investigation to the investigating authority in response to valid order or demand, or otherwise in PaneraTech’s sole discretion.

11.5      Effective Date.  This AUP was last revised on and is effective as of: June 1, 2022.

Part 12 – Qualified Purchasers

12.1      Qualified Purchaser Rights. Customer may permit one or more Qualified Purchasers to place orders during the term of the MSA directly through PaneraTech by executing a SOW with PaneraTech (each, an “Affiliate Agreement”), subject to the terms and conditions of this Part 12. 

12.2      Qualified Purchaser Representations and Warranties. In any SOW signed by a Qualified Purchaser, the Qualified Purchaser must: (a) identify the relevant Customer; and (b) represent and warrant to PaneraTech that (i) the Customer has provided Qualified Purchaser with, and Qualified Purchaser has read and understands, all of the terms and conditions of the MSA (which term includes any amendments thereto executed prior to the Effective Date of the SOW); and (ii) such entity is a Qualified Purchaser. 

12.3      Separate Agreements. Qualified Purchaser agrees that upon executing a SOW, such SOW and the MSA (collectively, the “Qualified Purchaser Agreement”) shall constitute a separate, enforceable agreement between Qualified Purchaser and PaneraTech which adopts and incorporates by reference all of the same terms and conditions as set forth in the MSA between the Customer and PaneraTech (the “Master Agreement”), except as those terms are amended or excluded below:

1. For purposes of the Qualified Purchaser Agreement: (a) as used in the incorporated terms of the Master Agreement, the term “Customer” shall mean the Qualified Purchaser; and (b) no Affiliate or licensee of the Qualified Purchaser shall be entitled to execute Quotes with PaneraTech pursuant to the Qualified Purchaser Agreement.

1. A Qualified Purchaser Agreement shall not change the amount or scope of liability or indemnification obligations of PaneraTech as set forth in the Master Agreement.  To the extent that liability claims have been made against PaneraTech under or in connection with the Master Agreement or any statement of work or other agreement entered into pursuant to the Master Agreement other than the Qualified Purchaser Agreement, those claims shall, where subject to limitation under the Master Agreement, reduce the aggregate liability of PaneraTech under or in connection with the Qualified Purchaser Agreement.  The aggregate liability of PaneraTech and any Qualified Purchaser of PaneraTech under the Master Agreement and all Quotes executed pursuant to this section 12 of the Master Agreement, shall not exceed the limitations of liability established under the Master Agreement.

1. In addition to those provisions of the Master Agreement which are incorporated by reference in any SOW signed by a Qualified Purchaser and survive termination in accordance with the survival clauses of the Agreement, this section 12 of the Master Agreement shall survive the termination of the Qualified Purchaser Agreement or any SOW for any reason.

1. Any Qualified Purchaser shall provide PaneraTech with immediate written notice no later than 30 days after: (i) Customer sells or otherwise transfers any portion of the voting stock or equivalent voting rights of Qualified Purchaser; (ii) Qualified Purchaser issues, grants or otherwise transfers voting stock or equivalent voting rights of Qualified Purchaser to any person or entity other than Customer; or (iii) the agreement which qualifies Qualified Purchaser as such expires or is terminated (each, a “Disqualifying Event”).  In addition to those termination rights which are incorporated by reference in a SOW in accordance with section 3 of the Master Agreement, PaneraTech shall have the right to terminate a Qualified Purchaser Agreement and/or any SOW immediately in the event of any Disqualifying Event.

12.4      Representations and Warranties. This section 12.4 applies only if the Customer has self-identified as a Qualified Purchaser of the Customer identified on the applicable SOW.  The Qualified Purchaser represents and warrants to PaneraTech that: (a) the Customer has provided Qualified Purchaser with, and Qualified Purchaser has read and understands, all of the terms and conditions of the MSA (which term includes any amendments thereto executed prior to the Effective Date of the SOW); and (b) such entity is a Qualified Purchaser.  Qualified Purchaser agrees that the SOW constitutes a separate, enforceable agreement between Qualified Purchaser and PaneraTech which adopts and incorporates by reference all of the same terms and conditions as set forth in the Master Agreement, except as those terms are amended or excluded in the Master Agreement.

Part 13 – General Terms and Conditions

13.1      Interpretation.  Headings used in the MSA and any SOW are for convenience only and not to be considered in construing the MSA or SOW.  If any part of this MSA or a SOW is held by a court of competent jurisdiction to be illegal or unenforceable, the validity or enforceability of the remainder of the MSA or SOW (as applicable) shall not be affected and such provision shall be deemed modified to the minimum extent necessary to make such provision consistent with applicable law. Termination is not an exclusive remedy.  The terms “such as” and “for example” and “include(s)” and “including” shall mean “such as (without limitation),” “for example (without limitation),” “include(s) (without limitation)” and “including (without limitation),” respectively.

13.2      Assignment.  Subject to the following, all of the terms and conditions of the MSA shall be binding upon, inure to the benefit of, and be enforceable by the respective successors and any permitted assigns of the parties. Neither party shall assign (by operation of law or otherwise) the MSA or any SOW or any of its rights or obligations thereunder without the prior written consent of the other party which shall not be unreasonably withheld, except that either party may assign its rights and delegate its duties and obligations under this MSA without such consent (a) to an Affiliate or (b) as a whole as part of the sale or transfer of all or substantially all of its assets and business, including by merger or consolidation, to or with a person or entity that agrees in writing to be bound by the terms and conditions of this MSA.  Notwithstanding the foregoing, if a party assigns this MSA pursuant to the preceding sentence, (i) the assigning party shall provide written notice thereof to the other party within 30 days after the effective date of the assignment, and (ii) if the assignee is a direct competitor of the non-assigning party, the non-assigning party may choose to terminate the MSA and any SOW(s) by providing the assigning party with written notice of termination no more than 30 days after its receipt of the foregoing notice of assignment.  Written notice of termination in accordance with the foregoing sentence shall include an explanation of the extent to which the assignee is a direct competitor of the non-assigning party.  Any attempt to assign the MSA or any SOW except as permitted under this section 13.2 shall be null and void There are no intended third party beneficiaries of the MSA or any SOW.

13.3      No Waiver. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. To the extent permitted by applicable law, no action, regardless of form, arising out of the MSA or any SOW may be brought under the MSA (or applicable SOW) by Customer more than one year after the cause of action has accrued (namely, when the injured party knew or should have known about the injury giving rise to the applicable claim).

13.4      Export Controls.  Customer certifies that it is not on the U.S. Department of Commerce’s Denied Persons List or affiliated lists, on the U.S. Department of Treasury’s Specially Designated Nationals List or on any U.S. Government export exclusion lists.

13.5      Governing Law.  This MSA shall be governed in all respects (without regard to any conflict of laws provisions) by the laws of the United States of America and the State of Delaware as such laws are applied to agreements entered into and performed entirely within the State of Delaware between residents of Delaware.  To the extent exclusion is permissible, the United Nations Convention on the International Sale of Goods will not apply, even where adopted as part of the domestic law of the country whose laws govern the MSA. If Customer is located in France or Quebec, Canada, the following applies: The Parties confirm that they have requested that the MSA be drafted in English (Les parties contractantes confirment qu’elles ont exigé quele présent contrat et tous les documents associés soient redigés en anglais).  The non-prevailing party hereby agrees to pay all expenses, including all attorneys’ fees and expenses, incurred by the other party to enforce the MSA or any SOW, including by PaneraTech in collecting the fees or other monies owed or provided herein.

13.6      Dispute Resolution.

               13.6.1  For Customers in the U.S.A. or Canada. If Customer is organized or has an office in the United States or Canada: (a) any claim, whether based on contract, tort or other legal theory (including any claim of fraud or misrepresentation), arising out of or relating to the MSA, including the interpretation, performance, breach or termination thereof, shall be exclusively brought and resolved by the federal and state courts located, in Wilmington, Delaware U.S.A.; (b) each party hereby waives any right to a jury trial in connection with any action or litigation in any way arising out of or related to the MSA, except where required by law; and (c) notwithstanding the foregoing, either party may enforce any judgment rendered by such courts in any court of competent jurisdiction.

               13.6.2  Dispute Resolution for Customers outside of the U.S. or Canada. This section 13.6.2 applies only if Customer is not organized and does not have an office in the United States or Canada. ALL DISPUTES, CONTROVERSIES AND CLAIMS ARISING OUT OF OR RELATED TO THESE TERMS SHALL BE EXCLUSIVELY RESOLVED BY ARBITRATION CONDUCTED UNDER THE RULES OF COMMERCIAL ARBITRATION OF THE INTERNATIONAL CHAMBER OF COMMERCE (“ICC”), SUPPLEMENTED AS NECESSARY BY THE PROCEDURAL RULES OF LAW OF THE US DISTRICT COURT OF DELAWARE, USA. THE ARBITRATION PROCEEDING SHALL TAKE PLACE IN WILMINGTON, DELAWARE, USA, IN THE ENGLISH LANGUAGE AND BEFORE AN ARBITRATOR CHOSEN BY MUTUAL AGREEMENT OF THE PARTIES OR, IF AGREEMENT CANNOT BE REACHED WITHIN 30 DAYS, BEFORE AN ARBITRATOR APPOINTED BY THE ICC.  THE PARTIES SHALL BE ENTITLED TO REASONABLE DISCOVERY PRIOR TO THE HEARING; ANY DISPUTES CONCERNING THE SCOPE OF DISCOVERY SHALL BE DECIDED BY THE ARBITRATOR. EXCEPT IN CONNECTION WITH ANY ENFORCEMENT OF THE DECISION OR AWARD, THE ARBITRAL PROCEEDINGS, THE AWARD OR ANY DOCUMENTS EXCHANGED IN, OR CREATED FOR, THE ARBITRATION PROCEEDING SHALL BE KEPT CONFIDENTIAL. THE DECISION OF THE ARBITRATOR SHALL BE FINAL AND BINDING AND NOT SUBJECT TO APPEAL.  THE AWARD OF THE ARBITRATOR SHALL BE ENFORCEABLE IN ANY COURT OF COMPETENT JURISDICTION. CUSTOMER AGREES IT HAS READ AND UNDERSTANDS THIS MANDATORY ARBITRATION PROVISION AND WAIVER OF JURY TRIAL, AND IT KNOWINGLY AND VOLUNTARILY WAIVES ITS RIGHTS TO A JURY TRIAL AND AGREES TO BINDING ARBITRATION.

13.7      Injunctive Relief. Notwithstanding any provisions of the MSA or any SOW to the contrary, should PaneraTech, in its sole discretion, determine or believe that a breach of the MSA (including any SOW) has occurred which gives rise to an injury for which PaneraTech may not be adequately compensated by monetary damages, PaneraTech may commence a lawsuit in the state or federal courts located in the State of Delaware, USA, to obtain emergency equitable relief, including a preliminary injunction and temporary restraining order. Customer irrevocably consents to the personal jurisdiction of the state or federal courts of the State of Delaware, USA, should PaneraTech pursue remedies under this paragraph and agrees that service of process, summons, notice or other document by mail or overnight delivery by a national/international carrier, with proof of delivery, to Customer’s address shall be effective service of process.

13.8      Changes in Laws.  PaneraTech may: (a) limit or discontinue the provision of any Deliverables to the extent PaneraTech is restricted by any rule, regulation, law or governmental entity; and (b) discontinue, update, upgrade or otherwise change the support, delivery and maintenance of any Deliverable if PaneraTech develops an updated or upgraded version or otherwise no longer generally provides such Deliverables to its customers. In the event PaneraTech materially modifies the content or scope of Deliverables provided to Customer, the Parties shall renegotiate the fees in good faith according to prevailing pricing models.

13.9      Consent + Notices.  Unless otherwise expressly indicated, any consent or authorization required under the MSA or any SOW shall be at the sole but reasonable discretion of the party from whom consent is required.  Notice shall be deemed to have been received by a party, and shall be effective, on the day received.  All breach-related notices permitted or required under the MSA or any SOW shall be in writing and delivered by recognized postal or courier services who provide delivery confirmation to the other party’s address set forth on the Signature Page, or such other address as the parties may provide in writing.  All other notices may be sent by email with notice deemed given upon acknowledgement of receipt by a reply email. 

13.10   Independent Contractors.  The parties are independent contractors with respect to one another. Nothing in the MSA or any SOW shall create a partnership, joint venture, agency, franchise, or employment relationship between the parties.

13.11       Force Majeure.   Except for payment of fees and expenses, neither PaneraTech nor any Affiliate or Vendor will be liable for failure or delay in performing its obligations if such is due to circumstances beyond its reasonable control, including acts of Customer, acts of God, acts of any governmental body or law enforcement agency, riots, acts of war or terrorism, cybersecurity incidents, insurrection, sabotage, embargo, fire, flood, pandemic, strike or other labor disturbance, interruption of or delay in transportation, unavailability or interruption or delay in telecommunications or third party services, or inability to obtain raw materials, supplies, or power used in or software needed for provision of the Deliverables. 

13.12   Entire Agreement.  This MSA, the applicable SOW(s) and other relevant cross-referenced documents, comprise the entire agreement between the parties regarding the subject matter hereof and supersede and merge all prior and contemporaneous proposals, understandings and all other agreements, oral and written, between the parties relating to the subject matter of the MSA, provided that any and all fees and expenses for Deliverables provided by PaneraTech prior to termination of any such prior agreement(s) shall survive.  This MSA and any SOW may be amended or modified only in a writing executed by both parties. This MSA and any SOW may be executed in counterparts, both of which taken together shall constitute one single agreement between the parties. This MSA and any SOW may be executed via facsimile or electronically. A copy of either party’s signature shall be deemed and be enforceable as an original thereof.