End User Licensing Agreement

By accessing or using the Platform or any of our Offerings (defined below), you agree to the terms of this End User License Agreement (“EULA”) between you and Order Penguin, Inc. (“Order Penguin”, “we,” “us”, or “our”). You also acknowledge receipt of our Privacy Statement, which shall be considered incorporated into this EULA by reference. Collectively, these documents form the “Agreement” between you and Order Penguin.

THE AGREEMENT WITH ORDER PENGUIN WILL BE LEGALLY BINDING. BY ACCESSING AND USING THE PLATFORM OR ANY OF OUR OFFERINGS, YOU ARE ACCEPTING THE AGREEMENT ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT IN CONNECTION WITH YOUR ACCESS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT THE AGREEMENT ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE PLATFORM AND OFFERINGS, AND TO ENTER INTO THE AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS DESCRIBED HEREIN, THEN YOU SHOULD CEASE ACCESSING OR USING THE PLATFORM AND/OR OFFERINGS. PLEASE NOTE THAT SECTION 10 DESCRIBES IMPORTANT LIMITATIONS OF LIABLITY WITH RESPECT TO THE PLATFORM AND OFFERINGS.

We may revise this EULA at any time in our sole and absolute discretion. The revised version of the EULA, or any of the other policy documents, will be considered effective at the time we post them to our website, www.orderpenguin.com (“Site”), unless otherwise noted. If our changes reduce your legal rights or increases your responsibilities under the Agreement, then we will post a notice to the Site or your Order Penguin account. If you do not agree with the posted changes, then you must discontinue your access to the Platform and/or use of the Offerings and disable your Order Penguin account. Your access to the Platform or use of Offerings after we have posted a change will be considered your acceptance of the new or changed terms.

1. DEFINITIONS

“Affiliate” means any entity controlling or controlled by or under common control with a party, where “control” is defined as the ownership of more than 50% of the equity or other voting interests of such entity or the power to direct or cause the direction of the management or policies of such entity, whether through ownership, voting securities, contract or otherwise.

“Documentation” means any written or electronic documentation, images, video, user manuals, descriptions, instructions or other materials made available to Customer which describe the specifications, operation, functionality or other information regarding the Services.

“End User” means a customer, whether a company or natural person, that accesses the Platform for purposes of shopping environmental equipment and related products for rental or sale and placing an Order for rental or purchase.

“Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

“Mobile Device” means smartphones and tablet computers that operate with iOS or Android operating system and may or may not have cellular network capabilities.

“Offerings” means the products, services and other offerings that Order Penguin makes commercially available, as such products, services, and other offerings may be described on the Site or in other Documentation, and as Order Penguin may revise from time to time.

“Order Penguin Technology” means any concepts, inventions, systems, processes, techniques, methodologies, know-how, data, tools, templates, technology (including, without limitation, software in executable code, source code and the dynamic pricing model used in providing the Services), or any other information, data, materials, and any expressions of the foregoing, developed by, owned by, or licensed to Order Penguin or its Affiliates.

“Platform” means the cloud-based software-as-a-service known as “Order Penguin,” including, without limitation, Order Penguin’s software platform, systems, servers, APIs, websites, mobile applications and any associated Order Penguin Technology that is owned, licensed or operated by Order Penguin or its Affiliates and made commercially available.

2. ACCOUNT

Order Penguin may, from time to time, make available certain features or functionalities that allow you to integrate the Platform or Services in conjunction with Third-Party Applications. You will be solely responsible for complying with any applicable terms and conditions (including, without limitation, privacy policies) for any such Third-Party Applications. Any terms and conditions for Third-Party Applications will be considered separate from this Agreement. Order Penguin expressly disclaims liability for any third-party services, or for transactions that you may enter into with any such third parties. When using third-party services, your security is your responsibility.

2.1 Account Creation

To access the Platform and use our Offerings, you must create your own End User account (“Account”). As it relates to your Account, you agree that the information you provide us will be true, accurate, current, and complete, and you will be solely responsible for maintaining the confidentiality of your Account, username, and password for all activities associated with or occurring under your Account. Without limiting any other terms of the Agreement, you may not use false identities or impersonate any other person or use a username (or nickname) or password that you are not authorized to use. You may not use another End User’s account or transfer your Account to another person without our express consent. You are responsible for all activities conducted under your account within the Platform and will notify Order Penguin promptly of any unauthorized use of any password or account or any other breach of security, known or suspected.

2.2 Compliance with Applicable Laws

You must comply with all applicable laws, rules and regulations (collectively, “Applicable Laws”) in your access to and use of your Account.

3. USE LICENSE

3.1 License Grant

Our Platform is licensed for use, not sold. By accessing the Platform or using any of our Offerings, you do not acquire any ownership rights in the Platform, Offerings, or any component thereof, including your Account. Subject to the terms of the Agreement, Order Penguin grants you a limited, non-exclusive, and non-transferrable license (without the right to sublicense) to access the Platform through your Account and use the Offerings for your own legitimate business purposes. There are no implied licenses under the Agreement and any licensed rights not specifically granted by Order Penguin are expressly reserved.

3.2 License Restrictions

You will not, and will not permit others acting through your Account, to:

(a) license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose, or otherwise commercially exploit the Platform or Offerings, or make the Platform or Offerings available to any third party;

(b) transmit any information that is unlawful, threatening, harmful, abusive, harassing, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful or racially, ethnically or otherwise objectionable;

(c) forge or otherwise manipulate any identifying information in order to disguise the origin of any information transmitted through, or stored in your Account;

(d) transmit any information that you do not have a right to transmit under Applicable Laws, or which infringes (or may infringe) on the Intellectual Property Rights of a third party;

(e) upload, post or otherwise transmit any unsolicited or unauthorized advertising, promotional or commercial material, generate spam or unsolicited emails, spoof of email addresses or others or sent commercial solicitations, “junk mail,” “chain letters,” or promotions for “pyramid schemes;”

(f) transmit any material that contains any computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment, including, without limitation, computer viruses, “worms,” “bombs,” “Trojan horses,” etc.

(g) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Platform;

(h) probe, scan or test the vulnerability of the Platform, our Offerings, or any other system or network associated with Order Penguin;

(i) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Platform or Offerings;

(j) interfere with or disrupt Order Penguin’s servers or networks, or disobey any requirement, procedure, policy, or regulation of the Order Penguin network;

(k) collect, store, or expose personal data about other End Users, or content provided by other End Users, without their express consent; and

(l) violate Applicable Laws.

3.3 Third-Party Applications

4. UPDATES

4.1 Platform Updates

We may, from time to time, develop patches, bug fixes, updates, and other modifications to improve the performance of the Platform and our Offerings (collectively, “Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. If you do not want such Updates, your only remedy is to stop accessing the Platform and to cancel your Account. If you do not cease using the Platform and our Offerings, you will receive Updates automatically. You acknowledge that you may be required to install Updates to access the Platform or use the Offerings on your Mobile Device and you agree to promptly install any Updates that Order Penguin provides.

4.2 Platform Enhancements

We may, from time to time, update the Platform or our Offerings to include enhancements or upgrades to existing products, services, features or functionalities (collectively, “Enhancements”). Whenever possible, Order Penguin will provide you with advance notice of the release of these Enhancements. Unless otherwise provided in writing, you will not be charged anything more for its use of Enhancements. Notwithstanding the foregoing, Order Penguin reserves the right to charge for new products, services, features or functionalities associated with the Platform or Services.

4.3 No Guarantees

We do not guarantee that the Platform or the Offerings (or any component thereof) will be available at all times, in all locations, or at any given time, or that we will continue to make the Offerings available with their current features or functionalities. We reserve the right to decommission, sunset, or disable any feature or functionality of the Platform, or any component thereof, or any of our Offerings, without or without notice. We further do not guarantee that the Platform or the Offerings can be accessed on all devices, by means of a specific internet provider, or in all geographic locations.

5. OWNERSHIP

5.1 Our Ownership

The Platform, each of our Offerings, all components thereof, and any and all Intellectual Property Rights therein, are and shall remain the exclusive property of Order Penguin, its Affiliates and/or its licensors. Order Penguin and its licensors reserve all rights in and to the Platform and all Offerings not expressly granted to you under this EULA.

5.2 Your Ownership

Any content that you create (“End User Content”) and upload to the Platform or your Account will continue to belong to you subject to the following terms and conditions: (a) we expressly disclaim any liability for End User Consent, including, without limitation, content that may be destroyed, misused or deleted by other end users of the Platform, or by us; (b) we do not verify, endorse, review for legality or appropriateness, or keep duplicate copies of any End User Content; and (c) you shall be solely responsible for maintaining a back-up copy of all of your End User Content, and shall retrieve all End User Content prior to cancelling your Account or discontinuing your access to the Platform or use of our Offerings.

5.3 Feedback

All suggestions or feedback provided by you to Order Penguin with respect to the Platform or any of our Offerings shall be our property. We may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that Order Penguin does not waive any rights to use similar or related ideas previously known to us, developed by our employees, or obtained from other sources.

5.4 Open Source

Certain items of software included with the Platform are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of this EULA. Instead, each item of Open Source Software is licensed under the terms of the end user license that accompanies such Open Source Software. Nothing in this EULA limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Order Penguin makes such Open Source Software, and our modifications to that Open Source Software, available by written request to Order Penguin at the email or mailing address listed below.

Upon termination of this EULA, the license granted hereunder will terminate but the terms of Sections 5.1 and 6 through 17 (inclusive) will remain in effect after any such termination.

6.4 Effect of Termination

Either party may terminate this EULA at any time, with or without notice.

6.3 Termination

We reserve an absolute right to suspend your Account, your access to the Platform, or your use of any of our Offerings if (a) we believe your access or use poses a security risk to other End Users of the Platform; (b) you fail to comply with the terms and conditions of this EULA; or (c) we determine that the suspension is reasonably necessary to protect our business or as may be required by Applicable Laws.

6.2 Suspension

This EULA and the license granted hereunder shall become effective on the date you first access the Platform, create an Account, or use any of our Offerings, and shall continue in effect for so long as you continue to access the Platform, maintain an Account, and/or use any of our Offerings, unless earlier terminated in accordance with this Section.

6.1 Term

6. TERM, SUSPENSION, & TERMINATION

ORDER PENGUIN IS MAKING ITS PLATFORM, OFFERINGS AND ALL DOCUMENTATION AVAILABLE TO YOU “AS IS,” “WITH ALL FAULTS,” AND WITHOUT WARRANTIES OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, ORDER PENGUIn, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES, AND ITS RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE PLATFORM, OFFERINGS AND ALL DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, ORDER PENGUIN PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE PLATFORM, OFFERINGS, AND/OR DOCUMENTATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OF YOUR SOFTWARE, HARDWARE, IT SYSTEMS, APPLICATIONS OR OTHER TECHNICAL EQUIPMENT, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, BOOST YOUR REVENUES, SELL YOUR PRODUCTS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS WILL BE CORRECTED.

7. WARRANTY DISCLAIMER

IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR ACCESS TO THE PLATFORM OR USE OF THE SERVICES, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES OR LOSS OF DATA, INTERRUPTION IN USE OR AVAILABILITY OF DATA OR SPECIFIC RESULTS OBTAINED THROUGH THE USE OF THE SERVICES, WHETHER ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, OR BASED IN TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

YOU ACKNOWLEDGES AND AGREE THAT ORDER PENGUIN’S TOTAL AGGREGATE LIABILITY RELATED TO OR ARISING UNDER THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), AND WHETHER BASED ON DIRECT CLAIMS OR THIRD-PARTY INDEMNIFIABLE CLAIMS, WILL NOT EXCEED THE TOTAL AMOUNT OF FEES RECEIVED BY ORDER PENGUIN IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE GIVING RISE TO SUCH LIABILITY. MULTIPLE CLAIMS WILL NOT INCREASE THE MAXIMUM AGGREGATE LIMIT DESCRIBED HEREIN.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATIONS OF DAMAGES AND/OR EXCLUSIONS OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

8. LIMITATION OF LIABILITY

To the fullest extent permitted by law, you agree to indemnify, defend, and otherwise hold harmless Order Penguin, its affiliates, and each of their officers, employees, agents, subsidiaries and other partners from and against all Claims against Order Penguin arising out of, relating to, or resulting from your or your Authorized Users’ access or use of the Platform or Offerings or any other matter relating to the Platform or Offerings. Order Penguin reserves the right to take sole responsibility for conducting the defense of any claim for which you agreed to indemnify us. The provisions of this Section 11 shall remain in force after termination of the EULA.

9. INDEMNIFICATION

Order Penguin’s Platform may be categorized as “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), the Platform is provided to U.S. Government End Users only as a commercial end item and with only those rights as are granted to all other end users pursuant to the terms and conditions herein.

10. U.S. GOVERNMENT END USERS

The Platform is subject to all applicable export restrictions. You must comply with all export and import laws and restrictions and regulations of any United States and foreign agency or authority relating to the Platform and your use of any of our Offerings. The Platform, or any component associated therewith, may not be re-exported, downloaded or otherwise exported to, or installed by a national or resident of, any country to which the United States has embargoed goods, or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. You represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.

11. EXPORT COMPLIANCE

You agree that this EULA, and any claim, dispute, action, cause of action, issue, or request for relief relating to this EULA, will be governed by the laws of the State of Georgia, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. Any action or proceeding relating to this EULA must be brought in a federal or state court located in Fulton County, Georgia and each party irrevocably submits to the jurisdiction and venue of any such court in any such claim or dispute, except that Order Penguin may seek injunctive relief in any court having jurisdiction to protect its intellectual property or Confidential Information. In any action or proceeding to enforce rights under this EULA, the prevailing party will be entitled to recover costs and attorneys’ fees.

12. GOVERNING LAW & VENUE

Neither the rights nor the obligations arising under this EULA are assignable by you, and any such attempted assignment shall be void and without effect.

13. ASSIGNMENT

Any notice to you may be provided by email to the address that you registered under your Account with Order Penguin.

14. NOTICES

If any provision of this EULA is unenforceable, such provision will be: (a) reformed only to the extent necessary to make it enforceable, and such holding shall not affect the enforceability: (i) of such provision under other circumstances; or (ii) of the remaining provisions hereof under all circumstances; or (b) if such reformation is not possible, severed from this EULA and the remainder of this EULA shall continue in full force and effect.

15. SEVERABILITY

A party’s waiver of a breach or default by the other party of any provision of this Agreement shall not be construed as a waiver of any succeeding breach or default by the other party, nor shall a party’s failure to exercise or enforce any right or provision of this EULA be deemed to be a waiver of such right or provision. Except as otherwise provided herein, any waiver, amendment or other modification of this EULA will not be effective unless in a writing executed by the parties.

16. WAIVER

Order Penguin will have no responsibility to provide maintenance or support services with respect to the Platform or Offerings. The parties are independent contractors. You acknowledge that the Platform and Offerings contain Order Penguin's valuable trade secrets and proprietary information, that any actual or threatened breach of the License Restrictions (in Section 3.2 of this EULA) will constitute immediate, irreparable harm to Order Penguin for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. The headings of Sections of this EULA are for convenience and are not to be used in interpreting this EULA. Except as otherwise provided in this section, no amendment to this EULA will be valid unless it is hand-signed by the parties in writing.

17. GENERAL

If you have any questions about this EULA, you may contact:

Order Penguin, Inc.

5 Concourse Pkwy NE, Suite 3000, Atlanta, GA 30328

+1 (833) 725-4777

support@orderpenguin.com

18. CONTACT