Service Provider Terms and Conditions

1. OVERVIEW

These Service Provider Terms and Conditions (these “Terms”) constitute the agreement of Service Provider and Ecotrak with respect to Ecotrak’s provision of the Software Services to Service Provider.  These Terms shall be presented to Service Provider, and Service Provider shall acknowledge and agree to such Terms, in connection with (i) the applicable Customer’s onboarding of Service Provider to the Software Services and/or (ii) the applicable Customer’s approval of an invoice issued by Service Provider if the corresponding work order for such invoice is completed in the Software Services.  In addition, Service Provider may elect to participate in the Ecotrak Preferred Service Provider Program (the “Program”) by enrolling in a Subscription Tier through a Program Enrollment.  The Program, the Subscription Tiers, and the benefits and eligibility criteria associated with each Subscription Tier are described in Exhibit B, which is incorporated into and forms part of these Terms.  Service Provider that has not enrolled in a paid Subscription Tier participates in the Program at the Free Tier by default.  In the event of a conflict between the body of these Terms and Exhibit B, Exhibit B controls, as further provided in Section 14.2.  Terms not defined in the body of these Terms are defined as stated in Exhibit A.

2. SOFTWARE SERVICES

In consideration of Service Provider’s compliance with these Terms, Ecotrak will use reasonable efforts to make the Software Services available to Service Provider, but solely in accordance with these Terms and solely to use the Software Services for the benefit of Customer.

3. USE OF SOFTWARE SERVICES

3.1 Duration of Rights.  Service Provider acknowledges and agrees that it shall only have the right to use the Software Services for the duration of the subscription period provided for the in the applicable Customer’s Order Form.  Notwithstanding the foregoing, if Service Provider has enrolled in a paid Subscription Tier and is current in the payment of the applicable Subscription Fee, Service Provider shall retain the right to access and use the Software Services and the Subscription Tier benefits described in Exhibit B for the duration of its Subscription Term, irrespective of whether any particular Customer’s Order Form remains in effect; provided, however, that Service Provider’s right to access, use, or receive any Customer Data or Customer Materials of a particular Customer, and to perform work orders for that Customer in the Software Services, remains limited to the duration of that Customer’s Order Form.  A paid Subscription Tier does not entitle Service Provider to receive any work order, bid invitation, dispatch, or volume of business from Ecotrak or from any Customer.

3.2  Service Provider Responsibilities.  Service Provider will: (a) be responsible for each User’s compliance with these Terms and liable for any User’s breach thereof; (b) comply with all laws applicable to the operation of, content on and data privacy and security related to Service Provider’s systems, including all privacy statement requirements; (c) prevent unauthorized access to, use of or reproduction of the Software Services, and notify Ecotrak promptly of any such unauthorized access, use or reproduction; (d) use the Software Services only as permitted in these Terms and in accordance with the Documentation and applicable laws; (e) advise its employees, agents and contractors who have access to the Software Services of the restrictions in these Terms; and (f) comply with terms of service of Non-Ecotrak Applications with which Service Provider uses the Software Services.

3.3  Usage Restrictions.  Service Provider will not: (a) make any Software Service available to or use any Software Service for the benefit of anyone other than Customer; (b) sell, resell, loan, license, sublicense, assign, transfer, distribute, rent or lease any Software Service, or include any Software Service in a service bureau or outsourcing offering, or otherwise make the Software Service available to any third party; (c) use a Software Service to store, post or transmit infringing, libelous, or otherwise unlawful, tortious, harassing, abusive, threatening, harmful, vulgar, invasive, obscene or otherwise objectionable material, or material that is harmful to minors in any way, or to store, post or transmit material in violation of third-party privacy rights or other rights; (d) use a Software Service to store or transmit Malicious Code; (e) interfere with or disrupt the integrity or performance of any Software Service or third-party data contained therein, or any servers or networks connected thereto, or violate the regulations, policies or procedures of such networks; (f) attempt to gain unauthorized access to any Software Service or its related systems or networks, or other accounts, or computer systems or networks connected to the Software Service, through password mining or any other means; (g) permit direct or indirect access to or use of any Software Service in a way that circumvents a contractual usage limit; (h) modify, translate, copy or create derivative works of a Software Service or any part, feature, function or user interface thereof; (i) copy any part of the Software Service; (j) frame or mirror any part of any Software Service; (k) create any Internet hyperlink to the Software Service; (l) access or use any part of the Software Service in order to build a competitive product or service; (m) decompile, disassemble, reverse engineer or reduce to human-perceivable form any software included in the Software Service (but only to the extent such restriction is not prohibited by law); (n) remove or modify, or attempt to remove or modify, any proprietary notices on the Software Service; (o) have any right to receive the source code for the Software Service or any deliverable; (p) use the Software Service to send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or any other form of duplicative messages, whether commercial or otherwise; (q) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; or (r) harass or interfere with another user’s use and enjoyment of the Software Service.

4. NON-ECOTRAK PROVIDERS

4.1 Acquisition of Non-Ecotrak Products and Services.  Ecotrak or Service Provider may make available third-party products or services to the applicable Customer, including, for example, Non-Ecotrak Applications and implementation and other consulting services.  Any acquisition by Customer of such non-Ecotrak products or services, and any exchange of data between Customer and any non-Ecotrak provider, including, but not limited to, Service Provider, is solely between Customer and the applicable non-Ecotrak provider.  Ecotrak does not warrant or support Non-Ecotrak Applications or other non-Ecotrak products or services, whether or not they are designated by Ecotrak as “certified” or otherwise, except as specified in the applicable Customer’s Order Form (if at all).

4.2 Non-Ecotrak Applications and Customer Data.  If the applicable Customer installs or enables a Non-Ecotrak Application made available by Service Provider for use with a Software Service, Service Provider acknowledges that the applicable Customer has granted Ecotrak permission to allow Service Provider to access such Customer’s Customer Data as required for the interoperation of that Non-Ecotrak Application with the Software Service.  Ecotrak is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by a Non-Ecotrak Application.

4.3 Integration with Non-Ecotrak Applications.  The Software Services may contain features designed to interoperate with Non-Ecotrak Applications.  To use such features, the applicable Customer may be required to obtain access to Non-Ecotrak Applications from their provider(s), including, but not limited to, the Service Provider, and may be required to grant Ecotrak access to the applicable Customer’s account(s) on the Non-Ecotrak Applications.  If Service Provider ceases to make the Non-Ecotrak Application available for interoperation with the corresponding Software Service features on reasonable terms, Service Provider acknowledges and agrees that Ecotrak may cease providing those Software Service features without entitling the applicable Customer to any refund, credit, or other compensation.

5. FEES AND PAYMENT

5.1 Program Tiers.  Ecotrak offers Service Provider three (3) Subscription Tiers: the Free Tier, the Partner Tier, and the Premier Tier (each, a “Subscription Tier”).  The fees, eligibility criteria, and benefits associated with each Subscription Tier are set forth in Exhibit B.  Unless and until Service Provider enrolls in the Partner Tier or the Premier Tier through a Program Enrollment accepted by Ecotrak, Service Provider is on the Free Tier and the Software Usage Fee described in Section 5.2 applies.  Enrollment in the Free Tier requires no monthly or annual fee and is not subject to any minimum volume requirement.

5.2 Software Usage Fee (Free Tier).  Service Provider shall pay to Ecotrak a fee of one dollar ($1) (the “Software Usage Fee”) per invoice issued by Service Provider and approved by the applicable Customer if the corresponding work order for such invoice is completed in the Software Services.  The Software Usage Fee applies only while Service Provider is on the Free Tier.  For so long as Service Provider is enrolled in the Partner Tier or the Premier Tier and is current in the payment of the applicable Subscription Fee, no Software Usage Fee is charged, and Service Provider may issue an unlimited number of invoices through the Software Services without incurring a per-invoice charge.  If Service Provider’s paid Subscription Tier expires, is terminated, or is downgraded to the Free Tier for any reason, the Software Usage Fee shall apply to each Customer-approved invoice on and after the effective date of that expiration, termination, or downgrade.  Service Provider acknowledges and agrees that it shall be responsible for paying such Software Usage Fee to Ecotrak for all such Customer-approved invoices, regardless of whether Service Provider has received payment from the applicable Customer for such Customer-approved invoice.

5.3 Subscription Fees.  Service Provider that enrolls in the Partner Tier or the Premier Tier shall pay to Ecotrak the subscription fee applicable to that Subscription Tier (the “Subscription Fee”), as set forth in Exhibit B and in Service Provider’s Program Enrollment.  As of the date of these Terms, the Subscription Fee is: (a) for the Partner Tier, one hundred ninety-nine dollars ($199) per month, or two thousand three hundred eighty-eight dollars ($2,388) per year if billed annually in advance; and (b) for the Premier Tier, one thousand dollars ($1,000) per month, or ten thousand dollars ($10,000) per year if billed annually in advance.  Subscription Fees are billed in advance for the applicable billing period, are non-cancelable, and, except as expressly stated in Section 5.10, Section 12.6(b), and Exhibit B, Section B.3(b), are non-refundable in whole or in part, including where Service Provider downgrades, is downgraded, or ceases to use the Software Services during a billing period.  The Subscription Fee is payable for the full Subscription Term regardless of the number of invoices Service Provider issues, the number of work orders Service Provider receives, or the extent to which Service Provider uses any Subscription Tier benefit.

5.4 Tier Elections, Upgrades, and Downgrades.  (a) Upgrades.  Service Provider may upgrade from the Free Tier to the Partner Tier at any time by submitting a Program Enrollment.  An upgrade takes effect on the first day of the billing period following Ecotrak’s acceptance of the Program Enrollment, or on such earlier date as Ecotrak may specify, and the Subscription Fee for the new Subscription Tier is charged from the effective date of the upgrade, prorated for any resulting partial billing period.  (b) Premier Tier.  The Premier Tier is available by invitation only.  Ecotrak may extend, decline to extend, condition, or withdraw an invitation to the Premier Tier in its sole discretion, including on the basis of the eligibility criteria and the limited number of Premier Tier positions described in Exhibit B.  Nothing in these Terms obligates Ecotrak to admit Service Provider to the Premier Tier or to maintain Service Provider in the Premier Tier.  (c) Downgrades.  Service Provider may elect to downgrade to a lower Subscription Tier effective as of the end of its then-current Subscription Term by providing written notice to Ecotrak at least thirty (30) days before the end of that Subscription Term.  A downgrade does not entitle Service Provider to any refund or credit of Subscription Fees already paid or payable for the then-current Subscription Term.  (d) Effect on Benefits.  Upon any downgrade, expiration, termination, or suspension of a paid Subscription Tier, all benefits associated with that Subscription Tier, including directory placement, marketplace lead access, application programming interface (API) access, use of any Ecotrak badge or co-branded materials, Market Development Funds, and any elevated Referral Commission rate, cease immediately as of the effective date of the change; provided, however, that the Referral Commission rate applicable to a Referred Customer whose initial Order Form was executed before that effective date remains fixed as provided in Section 5.5(a) and Exhibit B, Section B.7, and Service Provider shall promptly discontinue all use of the corresponding Ecotrak badges, marks, and co-branded materials.

5.5 Referral Commissions.  (a) Eligibility.  Subject to this Section 5.5 and Exhibit B, Ecotrak will pay Service Provider a referral commission (a “Referral Commission”) on each Referred Customer.  The Referral Commission rate is determined by Service Provider’s Subscription Tier as of the date the Referred Customer executes its initial Order Form, and is ten percent (10%) for the Free Tier, fifteen percent (15%) for the Partner Tier, and twenty percent (20%) for the Premier Tier.  (b) Qualification.  A prospective customer qualifies as a “Referred Customer” only if (i) Service Provider submits the prospective customer through Ecotrak’s then-current deal registration process before Ecotrak has had any prior contact with that prospective customer, (ii) Ecotrak accepts the registration in writing, (iii) the prospective customer was not, at the time of registration, an existing Customer, a party to an active Order Form, or an active opportunity in Ecotrak’s customer relationship management system, and (iv) the prospective customer executes an Order Form with Ecotrak within 180 days after Ecotrak accepts the registration.  Ecotrak’s records are determinative as to prior contact and prior opportunity status.  (c) Calculation and Payment.  Each Referral Commission is calculated as the applicable percentage of the Net Subscription Revenue actually received by Ecotrak from the Referred Customer during the [twelve (12)]-month period beginning on the commencement date of the Referred Customer’s initial Order Form.  Referral Commissions are calculated [quarterly] and paid within [forty-five (45)] days after the end of the [quarter] in which the corresponding Net Subscription Revenue is received, provided that Ecotrak may withhold payment until the aggregate amount payable to Service Provider exceeds [five-thousand] dollars ($5,000).  Ecotrak may set off any Referral Commission against any amount then owed by Service Provider to Ecotrak.  (d) Exclusions and Clawback.  No Referral Commission is payable with respect to (i) amounts invoiced but not collected, (ii) amounts refunded, credited, or charged back, (iii) taxes, shipping, third-party pass-through charges, professional services, implementation fees, or Non-Ecotrak Applications, unless otherwise agreed in writing, (iv) renewals, expansions, or additional sites beyond the period described in Section 5.5(c), or (v) any Referred Customer that is an Affiliate of Service Provider.  If Ecotrak refunds or fails to collect amounts on which a Referral Commission was paid, Service Provider shall repay the corresponding Referral Commission on demand or Ecotrak may set off that amount against future Referral Commissions.  (e) Conditions.  Referral Commissions are payable only while Service Provider is in compliance with these Terms and is not in default of any payment obligation to Ecotrak, and cease upon termination of these Terms.  Service Provider shall furnish a valid IRS Form W-9 (or applicable equivalent) before any Referral Commission is paid, and is solely responsible for all Taxes on amounts it receives.  (f) Compliance.  Service Provider represents and warrants that its referral activities will comply with all applicable laws, and that it will (i) accurately identify itself as an independent Ecotrak service provider and not as an agent, employee, or representative of Ecotrak, (ii) make no representation, warranty, or commitment regarding Ecotrak, the Software Services, or pricing other than as set forth in Ecotrak’s then-current published materials, and (iii) disclose the existence of the Referral Commission arrangement to each prospective customer to the extent required by applicable law or by that prospective customer’s own policies.  Service Provider shall not offer or pay any portion of a Referral Commission to any employee, officer, or agent of a prospective customer.  Service Provider acknowledges that Ecotrak is not a party to, and assumes no responsibility for, any agreement between Service Provider and a Referred Customer.

5.6 Invoicing and Payment.  Service Provider will receive a monthly invoice from Ecotrak, and such invoices will reflect the total Software Usage Fee based upon the number of Customer-approved invoices received during the prior month, the Subscription Fee for the then-current billing period, and any other amounts due under these Terms.  Unless otherwise stated in the applicable invoice, fees and expenses are due net 30 days from the invoice date.  Subscription Fees are invoiced in advance of the applicable billing period, and Software Usage Fees are invoiced in arrears.  If Service Provider has provided Ecotrak or its payment processor with a payment instrument, Service Provider authorizes Ecotrak to charge that payment instrument for all amounts due under these Terms, including recurring Subscription Fees, on each due date without further authorization, and shall keep that payment instrument valid and current.  Service Provider is responsible for providing complete and accurate billing and contact information to Ecotrak and notifying Ecotrak of any changes to such information.  Except as otherwise indicated by Ecotrak, (a) Service Provider’s payment obligations hereunder are non-cancelable and fees paid are non-refundable, except as expressly stated in Section 5.10, Section 12.6(b), and Exhibit B, Section B.3(b), and (b) prices are quoted and payable in U.S. dollars.

5.7 Overdue Charges.  If any invoiced amount is overdue, then without limiting Ecotrak’s other rights or remedies, Ecotrak may assess late payment interest on those charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.  Service Provider will reimburse all of Ecotrak’s costs and expenses (including attorneys’ and experts’ fees) incurred in any attempt to collect or the collection of overdue amounts.

5.8 Suspension of Service; Automatic Downgrade.  If any charge owing by Service Provider is thirty (30) days or more overdue, Ecotrak may, without limiting its other rights and remedies, suspend Service Provider’s access to the Software Services until such amounts are paid in full.  In addition, if a Subscription Fee is thirty (30) days or more overdue, Ecotrak may suspend or terminate the affected Subscription Tier and downgrade Service Provider to the Free Tier, in which case Section 5.4(d) applies and the Software Usage Fee resumes.  Suspension or downgrade under this Section 5.8 does not relieve Service Provider of its obligation to pay all amounts accrued through the effective date of the suspension or downgrade.

5.55.9 Taxes.  Ecotrak's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”).  Service Provider is responsible for paying all Taxes associated with its purchases hereunder.  If Ecotrak has the legal obligation to pay or collect Taxes for which Service Provider is responsible under this Section 5, Ecotrak will invoice Service Provider and Service Provider will pay that amount unless Service Provider provides Ecotrak with a valid tax exemption certificate authorized by the appropriate taxing authority.  For clarity, Ecotrak is solely responsible for taxes assessable against it based on its income, property and employees.

5.10 Changes to Fees and Program.  Ecotrak may change the Subscription Fees, the Software Usage Fee, the Referral Commission rates, and the benefits, eligibility criteria, and composition of the Subscription Tiers from time to time.  Any increase in the Subscription Fee or the Software Usage Fee, and any reduction in a Referral Commission rate, will take effect, for a Service Provider enrolled in a paid Subscription Tier, no earlier than the first day of that Service Provider’s next Subscription Term following at least thirty (30) days’ prior notice, and, for a Service Provider on the Free Tier, no earlier than thirty (30) days after notice to Service Provider.  Service Provider’s sole remedy if it does not accept such a change is, for a paid Subscription Tier, to elect not to renew in accordance with Section 12.5 or to downgrade in accordance with Section 5.4(c), and, for the Free Tier, to cease issuing invoices through the Software Services as of the effective date of the change.  Ecotrak may add, modify, or discontinue individual Subscription Tier benefits at any time upon notice, provided that Ecotrak will not discontinue a material benefit of a paid Subscription Tier during a Subscription Term for which Service Provider has prepaid without offering Service Provider either a substantially equivalent benefit or a pro rata refund of the prepaid Subscription Fee attributable to the remainder of that Subscription Term.

5.65.11 Future Functionality.  Service Provider agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written comments made by Ecotrak regarding future functionality or features.  Without limiting the foregoing, any Subscription Tier benefit identified by Ecotrak as planned, forthcoming, in beta, or subject to a target availability date is provided “as available,” and Ecotrak makes no commitment as to the date on which, or whether, any such benefit will become generally available.

6. PROPRIETARY RIGHTS AND LICENSES

6.1 Reservation of Rights.  Ecotrak and its licensors reserve all of their right, title and interest in and to the Software Services, including all of their related intellectual property rights.  No rights are granted to Service Provider other than as expressly set forth in these Terms.

6.2 License by Ecotrak to Use Software Services.  Subject to Service Provider’s compliance with these Terms, Ecotrak grants to Service Provider a worldwide, non-exclusive, non-transferable, non-sublicensable license to use the Software Services ordered by the applicable Customer pursuant to these Terms and the Documentation, solely during the applicable Customer’s subscription term and solely for the applicable Customer’s internal business purposes (i.e., only for the management of the applicable Customer’s assets for those concepts and for those locations specified in the applicable Customer’s Order Form).

6.3 Work Product.  Anything resulting from or arising in the course of performance of Ecotrak’s services hereunder will be deemed “Work Product.”  As between the parties, Ecotrak will own all right, title and interest in and to the Work Product, including all derivative works, enhancements and modifications of the Software Services.  Service Provider will take any further acts necessary to effect the intent of this provision.

6.4 License by Service Provider to Use Feedback.  Service Provider grants to Ecotrak and its Affiliates a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, transferable, sublicensable license to use and incorporate into the Software Services or other offerings any suggestion, enhancement request, recommendation, correction or other feedback (“Feedback”) provided by Service Provider or Users relating to the Software Services.  Ecotrak will not be obligated to credit Service Provider or any User for any such Feedback or hold any Feedback in confidence.

6.5 Usage Data.  Notwithstanding anything to the contrary, Ecotrak may use (itself or through third parties) Service Provider Data and data regarding Service Provider’s use of the Software Services to prevent or fix technical problems, improve its offerings, or develop other offerings.

6.6 Trademark License.  Subject to Service Provider’s compliance with these Terms and Ecotrak’s then-current brand guidelines, Ecotrak grants Service Provider a limited, non-exclusive, non-transferable, non-sublicensable, revocable license, during the period in which Service Provider is enrolled in a paid Subscription Tier, to use the Ecotrak badge and co-branded materials made available for that Subscription Tier solely to identify Service Provider’s participation in the Program.  Service Provider shall not modify those materials, use them in any manner that suggests endorsement of Service Provider’s own services by Ecotrak beyond Program participation, or register any mark confusingly similar to an Ecotrak mark.  All goodwill arising from such use inures to Ecotrak.  Service Provider grants Ecotrak a limited, non-exclusive, royalty-free license to use Service Provider’s name and logo to list Service Provider in the Ecotrak provider directory and in Program materials.  Each license under this Section 6.6 terminates immediately upon the expiration, termination, suspension, or downgrade of Service Provider’s paid Subscription Tier.

6.7 Federal Government End Use Provisions.  Ecotrak provides the Software Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Software Services include only those rights customarily provided to the public as defined herein. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation).  If a government agency has a need for rights not granted under these terms, it must negotiate with Ecotrak to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.

7. CONFIDENTIALITY

7.1 Definition of Confidential Information.  “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.  Confidential Information of Service Provider includes Service Provider Data; Confidential Information of Ecotrak includes the Software Services, Work Product, and other Ecotrak intellectual property; and Confidential Information of each party includes these Terms and all Order Forms of the applicable Customer (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party.  Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.

7.2 Protection of Confidential Information.  The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose other than to perform its obligations or exercise its rights hereunder.  Except as otherwise authorized by the Disclosing Party in writing, the Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with these Terms and who have signed confidentiality agreements containing protections comparable to those herein.  Neither party will disclose these Terms or any Order Form of the applicable Customer to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 7.

7.3 Compelled Disclosure.  The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.  If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Receiving Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

8. PROTECTION OF SERVICE PROVIDER DATA

8.1 Generally.  Ecotrak will maintain commercially reasonable administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Service Provider Data.  Those safeguards include measures designed for preventing access, use, modification or disclosure of Service Provider Data by Ecotrak personnel except (a) to provide the Software Services, prevent or fix technical problems, or improve the Software Service, (b) as compelled by law in accordance with Section 7.3, or (c) as expressly permitted by these Terms or otherwise writing by Service Provider.

8.2 IT Systems Security.  Ecotrak will maintain various controls, processes and standards for safeguarding Ecotrak’s information technology systems, which may include: controls for prevention, detection and removal of Malicious Code; processes for identifying technical vulnerabilities; minimum security requirements in network services agreements; standards for audit trails; processes for monitoring key systems for unusual or suspicious activity; processes for timely reporting of information security events or suspected security weaknesses; system access controls that include user authentication, use of unique identifiers and two-factor authentication for remote users; and procedures to control the installation of software on operational systems.

8.3 Prohibited Data.  Notwithstanding any other provision herein, Service Provider acknowledges that the Software Services are designed for the processing of the applicable Customer’s asset data.  The Software Services are not designed for the following types of data: (a) individual medical or health information, including any information comprising “Protected Health Information” under the Health Insurance Portability and Accountability Act; (b) security codes, passwords, credit or debit card numbers; (c) personal data (as defined by applicable law), particularly regarding residents of jurisdictions outside of the United States of America or individuals under thirteen years of age; or (d) information concerning a natural person’s (i) sex life or sexual orientation, (ii) racial or ethnic origin, (iii) genetic or biometric data, (iv) political opinions, (v) religious or philosophical beliefs, or (vi) trade union membership, (each of the foregoing, “Prohibited Data”). Service Provider shall not enter (or permit the entry of), whether on its own or on the applicable Customer’s behalf, any Prohibited Data into the Software Service or have Ecotrak enter Prohibited Data into the Software Service on Service Provider’s or the applicable Customer’s behalf, and shall ensure that no Service Provider Data constitutes or contains Prohibited Data.

9. WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

9.1 Ecotrak Warranties for Software Services.  Ecotrak warrants that the Software Service will conform in all material respects to the then-current Documentation for the applicable Software Service.  Service Provider’s sole and exclusive remedy, and Ecotrak’s entire liability, for breach of this limited warranty will be correction of the warranty nonconformity in the Software Service.  This limited warranty will not be valid to the extent the warranty nonconformity was caused by Service Provider’s abuse, misuse or modification of the Software Service.  Service Provider must notify Ecotrak in writing of any nonconformity of the Software Service within 30 days of discovery of such nonconformity in order to receive the above warranty remedies.

9.2 Service Provider Warranties.  Service Provider warrants that (a) it has the right to provide the Service Provider Materials to Ecotrak (and the Customer Materials, to the extent Service Provider provides any to Ecotrak) and allow Ecotrak to use the Service Providers Materials (and the Customer Materials, to the extent Service Provider provides any to Ecotrak) to provide the Software Services, and (b) it will comply with all applicable laws in its use of the Software Services.

9.3 Disclaimers.  EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, THE SOFTWARE SERVICES ARE PROVIDED “AS IS,” WITHOUT ANY WARRANTY WHATSOEVER. ECOTRAK DOES NOT WARRANT THAT THE SOFTWARE SERVICES WILL BE CONTINUOUSLY AVAILABLE, ERROR-FREE OR SECURE, OR THAT ALL DEFECTS IN THE SOFTWARE SERVICES WILL BE CORRECTED. ECOTRAK DOES NOT WARRANT OR GUARANTEE THAT PARTICIPATION IN ANY SUBSCRIPTION TIER WILL RESULT IN ANY WORK ORDER, BID INVITATION, LEAD, INTRODUCTION, REFERRAL COMMISSION, REVENUE, OR OTHER BUSINESS OPPORTUNITY, OR ANY PARTICULAR DIRECTORY PLACEMENT, SEARCH RANKING, OR LEVEL OF VISIBILITY. ANY EXAMPLES, PROJECTIONS, OR ESTIMATES OF POTENTIAL BENEFIT PROVIDED IN PROGRAM MARKETING MATERIALS ARE ILLUSTRATIVE ONLY AND ARE NOT A REPRESENTATION, WARRANTY, OR COMMITMENT. ECOTRAK WILL NOT BE LIABLE IN ANY WAY RELATED TO NON-ECOTRAK APPLICATIONS. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.

10. INDEMNIFICATION

10.1 Indemnification by Ecotrak.  Ecotrak will defend Service Provider against any claim, demand, suit or proceeding made or brought against Service Provider by a third party alleging that the use of a Software Service in accordance with these Terms infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Service Provider”), and will indemnify Service Provider from any damages, attorney fees and costs finally awarded against Service Provider as a result of, or for amounts paid or payable by Service Provider under a Ecotrak and court-approved settlement of, a Claim Against Service Provider, provided Service Provider (a) promptly gives Ecotrak written notice of the Claim Against Service Provider, (b) gives Ecotrak sole control of the defense and settlement of the Claim Against Service Provider (except that Ecotrak may not settle any Claim Against Service Provider unless it unconditionally releases Service Provider of all liability for past infringements), and (c) gives Ecotrak all reasonable assistance. If Ecotrak receives information about an infringement or misappropriation claim related to a Software Service, Ecotrak may in its discretion and at no cost to Service Provider (i) modify the Software Service so that it no longer infringes or misappropriates, and (ii) obtain a license for Service Provider’s continued use of that Software Service in accordance with these Terms. Ecotrak will not have any obligations under this Section 10 or any liability to the extent (A) a Claim Against Service Provider arises from Service Provider Materials (or Customer Materials, to the extent Service Provider provides any to Ecotrak), a Non-Ecotrak Application or Service Provider’s breach of these Terms, or (B) the Claim Against Service Provider would not have arisen but for (I) Service Provider’s combination or use of the Software Service with non-Ecotrak software, services or data, (II) modification of the Software Service by anyone other than Ecotrak, (III) Service Provider 's continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (IV) Ecotrak’s customization of the Software Service to meet Service Provider’s particular specifications or instructions, or (V) Service Provider’s use of the Software Service in a manner not strictly in accordance with these Terms.

10.2 Indemnification by Service Provider.  Service Provider will defend Ecotrak against any claim, demand, suit or proceeding made or brought against Ecotrak by a third party alleging (a) that the Service Provider Materials (or Customer Materials, to the extent Service Provider provides any to Ecotrak), or Ecotrak’s use thereof, or Service Provider’s use of any Software Service in breach of these Terms, violates, infringes or misappropriates such third party’s intellectual property, privacy or other rights, or violates applicable law, (b) facts that, if true, constitute a breach of these Terms by Service Provider or acts or omissions by Service Provider described in Section 10.1(I)-(V), or (c) any demand for compensation or benefits, or any other claim, related to Service Provider’s use of or decision based on a Software Service, or (d) any claim arising from Service Provider’s referral activities under Section 5.5, including any statement, representation, or warranty made by Service Provider to a prospective customer, or Service Provider’s use of any Ecotrak badge, mark, or co-branded material, except to the extent constituting grounds for a Claim Against Service Provider (collectively, a “Claim Against Ecotrak”), and will indemnify Ecotrak from any damages, attorney fees and costs finally awarded against Ecotrak as a result of, or for any amounts paid or payable by Ecotrak under a court-approved settlement of, a Claim Against Ecotrak, provided Ecotrak (i) promptly gives Service Provider written notice of the Claim Against Ecotrak, (ii) gives Service Provider sole control of the defense and settlement of the Claim Against Ecotrak (except that Service Provider may not settle any Claim Against Ecotrak unless it unconditionally releases Ecotrak of all liability), and (iii) gives Service Provider all reasonable assistance, at Service Provider’s expense.

10.3 Exclusive Remedy.  This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of third-party claim described in Section 10.1.

11. LIMITATION OF LIABILITY

11.1 Limitation of Damages.  ECOTRAK’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS WILL NOT EXCEED ITS PER INCIDENT OR PER OCCURRENCE INSURANCE COVERAGE FOR A SINGLE INCIDENT OR OCCURRENCE OR ITS AGGREGATE INSURANCE COVERAGE FOR MULTIPLE INCIDENTS OR OCCURRENCES COVERED BY THE SAME INSURANCE POLICY, AS THE CASE MAY BE.  THE ABOVE LIMITATIONS WILL APPLY REGARDLESS OF THE TYPE OF ACTION OR THEORY OF LIABILITY, AND EVEN IF REMEDIES FAIL OF THEIR ESSENTIAL PURPOSES.

11.2 Exclusion of Consequential and Related Damages.  IN NO EVENT WILL ECOTRAK HAVE ANY LIABILITY TO SERVICE PROVIDER FOR ANY LOST PROFITS, REVENUES OR DATA, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES, REGARDLESS OF THE TYPE OF ACTION OR THEORY OF LIABILITY ON WHICH THEY ARE BASED, AND EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

11.3 Limitation on Time to File Claims.  A PARTY MUST FILE ANY CLAIM ARISING FROM OR RELATED TO THESE TERMS WITHIN ONE YEAR AFTER THE CLAIM AROSE, OR THE CLAIM WILL BE FORFEITED AND FOREVER BARRED.

11.4 Force Majeure Events.  ECOTRAK WILL NOT BE LIABLE FOR ANY FAILURE OR DELAY DUE TO A FORCE MAJEURE EVENT.

12. TERM AND TERMINATION

12.1 Term.  These Terms shall remain in effect for the duration of the subscription period provided for the in the applicable Customer’s Order Form.  For clarity, Service Provider shall remain subject to these Terms for so long as Service Provider has a right to use the Software Services.  If Service Provider enrolls in a paid Subscription Tier, these Terms shall additionally remain in effect for the duration of Service Provider’s Subscription Term, whether or not any Customer Order Form is then in effect.

12.2 Payment upon Termination.  In no event will termination or expiration of these Terms or the applicable Customer’s Order Form relieve Service Provider of its obligation to pay any fees payable to Ecotrak for the period prior to the effective date of termination.

12.3 Service Provider Data Portability and Deletion.  Upon request by Service Provider made within 30 days after the effective date of termination or expiration of these Terms or the applicable Customer’s Order Form, Ecotrak will make the Service Provider Data, if any, available to Service Provider for export or download as provided in the Documentation.  After such 30-day period, Ecotrak will have no obligation to maintain or provide any Service Provider Data.

12.4 Effects of Termination; Surviving Provisions.  Service Provider’s right to use the Software Services will terminate immediately and automatically upon the expiration or termination of the applicable Customer’s Order Form.  The preceding sentence does not apply to a Service Provider enrolled in a paid Subscription Tier, whose rights terminate as provided in Sections 3.1, 12.5, and 12.6.  The following Sections will survive any termination or expiration of these Terms: 4, 5, 6, 7, 8.3, 9.3, 10, 11, 12.2-12.46, and 14, and Exhibit B, Sections B.7 and B.8.

12.5 Subscription Term; Renewal.  Each paid Subscription Tier has an initial term as set forth in Service Provider’s Program Enrollment (the “Initial Subscription Term”), and automatically renews for successive periods of equal length (each, together with the Initial Subscription Term, a “Subscription Term”) unless either party gives written notice of non-renewal at least thirty (30) days before the end of the then-current Subscription Term.  Non-renewal of a paid Subscription Tier does not terminate these Terms; upon the effective date of non-renewal, Service Provider is downgraded to the Free Tier and Section 5.4(d) applies.

12.6 Termination of Subscription Tier.  (a) By Ecotrak for Cause.  Ecotrak may suspend or terminate Service Provider’s paid Subscription Tier immediately upon notice if Service Provider (i) fails to pay any amount when due and does not cure within ten (10) days after notice, (ii) materially breaches these Terms and does not cure within thirty (30) days after notice, (iii) breaches Section 3.3, Section 5.5(f), or Section 6.6, (iv) fails to maintain any license, insurance, or certification required by Ecotrak or by the applicable Customer, or (v) becomes the subject of a bankruptcy, insolvency, receivership, or similar proceeding.  Termination under this Section 12.6(a) does not entitle Service Provider to any refund.  (b) By Ecotrak for Convenience.  Ecotrak may terminate Service Provider’s paid Subscription Tier for convenience upon thirty (30) days’ notice, in which case Ecotrak will refund the pro rata portion of any prepaid Subscription Fee attributable to the terminated portion of the then-current Subscription Term, which refund is Service Provider’s sole and exclusive remedy.  (c) Premier Tier.  Ecotrak may withdraw Service Provider’s Premier Tier designation and step Service Provider down to the Partner Tier or the Free Tier in accordance with Exhibit B, Section B.3(b).  (d) Effect.  Upon any termination of a paid Subscription Tier, Service Provider is downgraded to the Free Tier, unless these Terms have otherwise terminated or Ecotrak has stepped Service Provider down to a different Subscription Tier under Section 12.6(c), in which case Service Provider is enrolled in that Subscription Tier and the Subscription Fee for that Subscription Tier applies from the effective date of the step-down.  Section 5.4(d) applies with respect to the benefits of the Subscription Tier that Service Provider has left, and all unpaid amounts accrued through the effective date of termination become immediately due.

13. INSURANCE

13.1 Coverage.  Ecotrak will maintain in effect at all times during the rendering of Software Services under these Terms the following insurance:

(a) Commercial General Liability Insurance with limits of at least $1,000,000 - Combined Bodily Injury and Property Damage, $1,000,000 - Single Limit Bodily Injury and Property Damage. Such insurance will be written on an occurrence basis.

(b) Owned, Non-Owned and Hired Automobile Liability Insurance with at least $1,000,000 Combined Single Limit Bodily Injury and Property Damage limits.

(c) Excess/Umbrella Liability Insurance with a minimum limit of $5,000,000 per occurrence (this policy should provide excess limits for the general liability, employers liability and automobile liability and be follow form or at least as broad in coverage).

(d) Full statutory coverage for Workers’ Compensation and Employers Liability with limits of at least $1,000,000 and Disability Insurance for all its employees if and as required by law. These policies will contain waivers of the insurer’s subrogation rights against Customer where permitted by law.

(e) Errors and Omissions Liability Insurance, with a minimum limit of $2,000,000 per occurrence, $2,000,000 annual aggregate; and

(f) Cyber Liability Insurance with minimum limits of $2,000,000 per occurrence and $2,000,000 annual aggregate.

14. GENERAL PROVISIONS

14.1 Export Compliance.  The Software Services, and derivatives thereof, may be subject to export laws and regulations of the United States and other jurisdictions. Ecotrak and Service Provider each represents that it is not named on any U.S. government denied-party list. Service Provider will not permit any User to access or use any Software Service in a U.S.-embargoed country or in violation of any U.S. export law or regulation. Ecotrak does not represent or warrant that the use of the Software Service is lawful or available in any country outside of the United States.

14.2 Entire Agreement.  These Terms contain the entire agreement between Ecotrak and Service Provider regarding Ecotrak’s provision of, and Service Provider’s receipt and use of, the Software Services, and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning their subject matter.  These Terms include Exhibit A, Exhibit B, and any Program Enrollment submitted by Service Provider and accepted by Ecotrak.  In the event of a conflict, the order of precedence is: (a) a Program Enrollment, (b) Exhibit B, and (c) the body of these Terms and Exhibit A.  Program marketing materials, including decks, brochures, and web pages, are not part of these Terms.  No modification, amendment, or waiver of any provision of these Terms will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.

14.3 Relationship of the Parties.  The parties are independent contractors.  Nothing in these Terms create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.  Without limiting the foregoing, neither Service Provider’s participation in the Program, nor its use of any Ecotrak badge or designation, nor its receipt of Referral Commissions or Market Development Funds, creates any agency, franchise, partnership, or joint venture relationship, and Service Provider has no authority to bind Ecotrak.

14.4 Third-Party Beneficiaries.  There are no third-party beneficiaries under these Terms.

14.5 Notices.  Except as otherwise specified in these Terms, all notices related to these Terms will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, (c) the second business day after sending by confirmed facsimile, or (d), except for notices of termination or an indemnifiable claim (“Legal Notices”), which must be sent by physical mail, the day of sending by email. Notices to Ecotrak will be addressed to the attention of “CEO,” at the following address, or at such other address as Ecotrak may provide to Service Provider by notice: 18004 Sky Park Circle, Suite 100, Irvine, CA 92614. All other notices to Service Provider will be addressed to the relevant contacts designated by Customer in an Order Form.  Service Provider is responsible for providing its notice address to Ecotrak and notifying Ecotrak of any changes to such address.

14.6 Waiver.  No failure or delay by either party in exercising any right under these Terms will constitute a waiver of that right.

14.7 Severability.  If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision will be reformed to the nearest enforceable provision (or deemed null and void if this is impermissible), and the remaining provisions of these Terms will remain in effect.

14.8 Construction.  These Terms will not be construed against the drafter. Lists following “include”, “includes” or “include” are illustrative and not exhaustive. Terms not defined in the body of these Terms are defined as stated in Exhibit A.

14.9 Assignment.  Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign its rights or obligations hereunder, without the other party’s consent, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Ecotrak may also subcontract its performance of the Software Services under these Terms.

14.10 Governing Law.  These Terms, and any disputes arising out of or related thereto, will be governed exclusively by the internal laws of the State of California, without regard to any principle that would cause the application of the law of any other state.

14.11 Venue.  All claims and issues arising from, relating to, or connected with these Terms that an arbitrator determines are excluded from the arbitration requirements herein (i.e., Section 14.12) may only be filed and resolved by state or Federal courts located in Los Angeles County, California, and each party consents to the exclusive jurisdiction of those courts. Further, Ecotrak may obtain injunctive or other equitable relief in such courts in the event of any infringement or threatened infringement of its intellectual property rights. Neither party will claim that an aforementioned court lacks personal jurisdiction, is an inconvenient forum or is an improper venue.

14.12 Arbitration.  The parties must submit all claims and issues arising from, relating to, or connected with these Terms to binding arbitration (e.g., a contract breach claim, indemnification duty issue, and questions regarding an arbitrator’s authority) in accordance with this Section 14.12.  A single arbitrator will conduct the arbitration in Los Angeles County, CA, and in accordance with the current Rules of Practice and Procedure of the Judicial Arbitration and Mediation Service (JAMS). The arbitrator is bound by strict rules of law and these Terms. The arbitrator does not have the power to commit errors of law or legal reasoning, and a court may vacate or correct an arbitration award because of such errors. The Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs all issues arising from the arbitrability or the enforcement of the agreement to arbitrate, except for the requirements to apply California state law (but disregarding any principle of law that would cause the application of the law of any other jurisdiction or permit a court, as opposed to the arbitrator, to determine the applicability or validity of this agreement to arbitrate). The parties will equally share the arbitrators’ fees and other arbitration costs, regardless of outcome. The parties must submit or file any claim that would constitute a compulsory counterclaim (as defined by Rule 13 of the Federal Rules of Civil Procedure) within the same arbitration proceedings as the claim to which it relates; any such claim which is not submitted or filed will be barred. The arbitrator may only award damages and may only grant relief that is permitted by these Terms.  The arbitrator’s decision, award and relief will be conclusive and binding on the parties.  Either party may enter the arbitrator’s decision, award and relief in any court having appropriate jurisdiction.

14.13 Class-Action Waiver.  Arbitration may only be conducted on an individual, not a class wide, basis.  No arbitration proceeding between Service Provider and Ecotrak may be consolidated with any other arbitration proceeding involving Ecotrak and any other person or entity.  Each party shall file and prosecute arbitration proceedings separately and individually in the name of Service Provider and Ecotrak, and not in any representative capacity.  Each party hereby irrevocably waives and agrees not to assert any claim inconsistent with this Section 14.13.

14.14 Changes.  Ecotrak reserves the right to make changes to these Terms at its discretion.  Ecotrak will post the updated Terms at its legal page and, for any change that materially and adversely affects a Service Provider enrolled in a paid Subscription Tier, will provide at least thirty (30) days’ prior notice.  Such a change takes effect as to that Service Provider on the first day of its next Subscription Term.  Service Provider’s continued use of the Software Services after the effective date of a change constitutes acceptance of the change.

EXHIBIT A

DEFINITIONS

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Customer” means the customer of Ecotrak that has either (i) onboarded Service Provider to the Software Services or (ii) approved an invoice of Service Provider for which the corresponding work order is completed in the Software Services, and in either instance for which Service Provider has acknowledged and agreed to these Terms.

“Customer Data” means electronic data or information submitted by the applicable Customer or for such Customer by Service Provider or any other person to the Software Services or collected and processed by the applicable Customer or for such Customer by Service Provider or any other person using the Software Services. “Customer Data” does not include data transmitted to or stored in Non-Ecotrak Applications.

“Customer Materials” means the Customer Data and all other materials provided by the applicable Customer or for the applicable Customer by Service Provider or any other person to Ecotrak.

“Documentation” means Ecotrak’s specifications, user guides and similar documentation available through its website, and any custom documentation Ecotrak creates for the applicable Customer, all as updated from time to time.

“Ecotrak” means Ecotrak, LLC, a Delaware limited liability company, or its Affiliate.

“Ecotrak Pay” means Ecotrak’s payment facilitation functionality through which Customers remit, and Service Providers receive, payment for Customer-approved invoices, as more fully described in the Documentation.

“Force Majeure Event” means circumstances beyond Ecotrak’s control, including modifications of the Software Service by any person other than Ecotrak or a person acting at Ecotrak’s direction, war, natural disaster, or other “acts of God”, general Internet outages, failure of Service Provider’s infrastructure or connectivity (including direct connectivity and virtual private network (VPN) connectivity to the Software Service), computer and telecommunications failures and delays not within Ecotrak’s control, and network intrusions or denial-of-service or other attacks.

“Free Tier” means the Subscription Tier described in Exhibit B for which no Subscription Fee is charged and for which the Software Usage Fee applies.

“Initial Subscription Term” has the meaning given in Section 12.5.

“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs, cancel bots and Trojan horses.

“Market Development Funds” or “MDF” means the cooperative marketing funds that Ecotrak may make available to Premier Tier Service Providers in accordance with Exhibit B, Section B.6.

“Net Subscription Revenue” means the subscription fees actually received by Ecotrak from a Referred Customer under that Referred Customer’s Order Form, excluding Taxes, shipping, third-party pass-through charges, implementation and professional services fees, amounts attributable to Non-Ecotrak Applications, and any amounts refunded, credited, or charged back.

“Non-Ecotrak Application” means a web-based or offline software application that is provided by the applicable Customer, Service Provider, or a third party and interoperates with a Software Service, including, for example, an application that is developed by the applicable Customer or for such Customer by Service Provider or any other person.

“Order Form” means an ordering document specifying the Software Services to be provided by Ecotrak to the applicable Customer that is entered into between such Customer or any of its Affiliates and Ecotrak or any of its Affiliates, including any addenda and supplements thereto.

“Partner Tier” means the paid Subscription Tier described in Exhibit B that is available to all Service Providers on a self-select basis.

“Premier Tier” means the paid, invitation-only Subscription Tier described in Exhibit B.

“Program” has the meaning given in Section 1.

“Program Enrollment” means the enrollment form, order document, or in-product election by which Service Provider selects a Subscription Tier, specifies its billing frequency and Initial Subscription Term, and which is accepted by Ecotrak.

“Referral Commission” has the meaning given in Section 5.5.

“Referred Customer” has the meaning given in Section 5.5(b).

“Service Provider” means either (i) the service provider that Customer has onboarded to the Software Services or (ii) the service provider that issued the Customer-approved invoice for which the corresponding work order is completed in the Software Services, and in either instance is acknowledging and agreeing to these Terms.

“Service Provider Materials” means all materials, data, content, documentation, certificates, licenses, insurance records, images, and other information provided by or on behalf of Service Provider to Ecotrak or uploaded by Service Provider to the Software Services, including Service Provider Data.

“Service Provider Data” means electronic data or information submitted by or for Service Provider to the Software Services or collected and processed by or for Service Provider using the Software Services.

“Software Services” means the Ecotrak software services ordered by the applicable Customer and used by Service Provider solely for the benefit of such Customer pursuant to these Terms.  “Software Services” excludes Non-Ecotrak Applications.

“Subscription Fee” has the meaning given in Section 5.3.

“Subscription Term” has the meaning given in Section 12.5.

“Subscription Tier” has the meaning given in Section 5.1.

“User” means an individual who accesses the Software Services on behalf of Service Provider.  “Users” include, for example, employees, contractors and agents of Service Provider.

EXIBIT B

ECOTRAK PREFERRED SERVICE PROVIDER PROGRAM

B.1 Program Overview.  The Program is a voluntary, tiered subscription program offered by Ecotrak to Service Providers.  Participation is not required in order to use the Software Services for the benefit of a Customer.  Every Service Provider participates at the Free Tier by default and may elect the Partner Tier at any time; the Premier Tier is available by invitation only.  Capitalized terms used in this Exhibit B and not defined here have the meanings given in the body of these Terms or in Exhibit A.

B.2 Subscription Tiers and Fees.  The following table summarizes the fees and principal benefits of each Subscription Tier as of the date of these Terms.  This table is a summary and is qualified by the balance of this Exhibit B and by the body of these Terms.

B.3 Eligibility and Admission. (a) Free Tier and Partner Tier. Enrollment in the Free Tier and the Partner Tier is open to any Service Provider that has accepted these Terms, is in good standing, and satisfies Ecotrak’s then-current onboarding, insurance, licensing, and compliance requirements. Neither tier is subject to a minimum invoice, work order, or revenue requirement. (b) Premier Tier. Admission to the Premier Tier is by invitation from Ecotrak only. Ecotrak may, in its sole discretion, consider a Service Provider for invitation if the Service Provider has been enrolled in the Partner Tier in good standing for at least six (6) consecutive months, and Ecotrak may limit the total number of Premier Tier positions available at any time, including to [twenty-five (25)] positions. Ecotrak may decline to extend an invitation, condition an invitation, or withdraw the Premier Tier designation at any time, effective at the end of the then-current billing period, if Service Provider ceases to satisfy Ecotrak’s eligibility criteria, falls out of good standing, or fails to maintain required insurance, licensing, or compliance records. Upon withdrawal of the Premier Tier designation, Ecotrak will step Service Provider down to the Partner Tier unless Service Provider elects, or Ecotrak determines that Service Provider is not eligible for, the Free Tier, and the Subscription Fee for the resulting Subscription Tier applies from the effective date of the step-down. Upon withdrawal of the Premier Tier designation other than for cause under Section 12.6(a), Ecotrak will refund the pro rata portion of any prepaid Subscription Fee attributable to the withdrawn portion of the then-current Subscription Term. No Service Provider has any entitlement or expectancy of admission to, or continuation in, the Premier Tier.

B.4 Description of Tier Benefits. (a) Provider Portal and Mobile Application. Access to the Ecotrak provider portal and mobile application is included at all Subscription Tiers, is provided in accordance with the Documentation, and is subject to Sections 3.2, 3.3, and 9.1. Feature availability may differ by platform, device, and operating system version, and Ecotrak may modify, update, or discontinue individual features on reasonable notice. (b) Directory Listing and Placement. Directory listings and search placement are provided as a convenience. Placement within a tier is determined by Ecotrak’s then-current ranking logic and may take into account compliance status, responsiveness, performance, and geography. Ecotrak does not guarantee that any Customer will view, contact, or engage Service Provider. (c) API Access. Partner Tier and Premier Tier include access to Ecotrak’s then-current provider application programming interfaces, subject to the Documentation, Ecotrak’s API usage policies, and reasonable rate limits. Ecotrak may modify, version, deprecate, or discontinue any API on reasonable notice. (d) Marketplace Leads and Bid Invitations. Ecotrak may, but is not obligated to, extend bid invitations or lead notifications. Ecotrak does not control which Service Provider a Customer selects and makes no commitment as to the number, value, or quality of any lead or invitation. (e) Compliance Suite. Compliance features, including certificate of insurance and license upload, expiration alerting, and dispatch blocking, are tools provided to assist Service Provider and Customers. Service Provider remains solely responsible for maintaining all required insurance, licenses, registrations, and certifications, and for the accuracy of all documentation it uploads. Ecotrak does not verify, endorse, or assume responsibility for Service Provider’s compliance status. (f) Deal Registration. Deal registration confirms a prospective customer for purposes of Section 5.5 only; it does not grant Service Provider exclusivity, territory rights, or any right to compensation other than a Referral Commission earned under Section 5.5. (g) Support; Customer Success. Support response targets stated in Section B.2 are targets, not service level commitments, and no credit, refund, or other remedy is available for a missed target. Assignment of a dedicated Customer Success Manager to a Premier Tier Service Provider is a staffing allocation made in Ecotrak’s discretion; Ecotrak may reassign, substitute, or temporarily cover that role at any time, and no individual is dedicated exclusively to Service Provider. Executive business reviews are offered on a quarterly target cadence, subject to the availability of Ecotrak personnel and mutually agreed scheduling. (h) Advisory Board, Facilitator Program, and Provider Summit. Participation is by invitation and at Ecotrak’s discretion, may be revoked at any time, and may be conditioned on separate terms, including confidentiality and intellectual property assignment terms applicable to advisory board participation. Travel, lodging, and incidental costs of attending any Ecotrak event are Service Provider’s responsibility unless Ecotrak states otherwise in writing.

B.5 Ecotrak Pay and Payment Acceleration. Ecotrak Pay is a payment facilitation feature. “Standard settlement” means remittance to Service Provider in accordance with Ecotrak’s then-current standard processing schedule following the applicable Customer’s approval and funding of an invoice, as described in the Documentation; Ecotrak does not commit to any particular standard settlement timing. Premier Tier Service Providers may be eligible for accelerated settlement of Customer-approved invoices, with a target settlement of [two (2)] business days after Customer approval, subject to Ecotrak’s then-current eligibility criteria, verification and anti-fraud checks, transaction and aggregate limits, and the requirements of Ecotrak’s payment processor. Accelerated settlement is not a loan, an extension of credit, a factoring arrangement, a guarantee of payment, or a purchase of receivables, and does not transfer to Ecotrak the risk of a Customer’s non-payment. Ecotrak’s obligation to remit any amount is contingent on Ecotrak’s receipt of corresponding funds from the applicable Customer, and Ecotrak may recoup, offset, or reverse any amount remitted to Service Provider in respect of an invoice that is subsequently reversed, disputed, adjusted, or not funded by the Customer. Ecotrak may suspend, modify, or discontinue payment acceleration for any Service Provider at any time upon notice. Settlement timing targets are targets, not commitments.

B.6 Market Development Funds (Premier Tier). Ecotrak may make Market Development Funds of up to ten thousand dollars ($10,000) per calendar year available to a Premier Tier Service Provider, on the following basis: (a) MDF are available only for marketing activities approved by Ecotrak in writing in advance; (b) MDF are provided as reimbursement against documented, third-party out-of-pocket costs actually incurred, and are not payable in cash, as a credit against Subscription Fees, or as a rebate; (c) reimbursement requests must be submitted with supporting invoices and proof of performance within [ninety (90)] days after the activity and in no event later than [thirty (30)] days after the end of the calendar year; (d) all materials using Ecotrak marks must be approved by Ecotrak in advance under Section 6.6; (e) unused MDF do not accrue, carry over, or convert to any other benefit and are forfeited at the end of each calendar year; and (f) eligibility for MDF ceases immediately upon any downgrade, suspension, termination, or non-renewal of the Premier Tier. MDF are a discretionary benefit and Ecotrak may reduce, suspend, or discontinue the MDF program at any time upon notice.

B.7 Referral Commissions. Referral Commissions are governed by Section 5.5. The Referral Commission rate applicable to a Referred Customer is fixed as of the date that Referred Customer executes its initial Order Form and does not change if Service Provider subsequently changes Subscription Tiers. Sections 5.5(d) and 5.5(e) survive termination or expiration of these Terms and of any Subscription Tier.

B.8 General. (a) Discretionary Benefits. Except for the Subscription Fee and Software Usage Fee treatment set out in Section B.2, all Program benefits are provided on an “as available” basis and may be added, modified, suspended, or discontinued in accordance with Section 5.10. (b) No Exclusivity. Nothing in the Program grants Service Provider exclusivity of any kind, including as to any trade, geography, Customer, or site. (c) No Guarantee of Business. The Program does not obligate Ecotrak or any Customer to offer Service Provider any work, and Section 9.3 applies to all Program benefits. (d) Good Standing. For purposes of this Exhibit B, a Service Provider is in “good standing” if it is current on all amounts owed to Ecotrak, is not in uncured material breach of these Terms, maintains all insurance and licensing required by Ecotrak and by the applicable Customers, and has no unresolved compliance flag in the Software Services. (e) Survival. Sections B.7 and B.8 survive termination or expiration of these Terms.