End Customer Service Level Agreement

This Services Agreement (“Agreement“) is effective as of the date the last party signs below (“Effective Date“) by and between NAV-X, LLC (“Company“), a Delaware limited liability company, with its principal office at 670 North Beers Street, Building 4, 2nd Floor, Holmdel, NJ 07733 and the customer whose name and address is set forth on the signature page of this Agreement (“Customer“). The parties agree as follows:

BACKGROUND. Customer is a licensee of Software of COMPANY and/or its Affiliates. Customer desires for COMPANY to provide Services for such Software. This Agreement states the terms and conditions by which COMPANY will deliver and Customer will receive any or all of the Services ordered by Customer and provided by COMPANY. In the event that any terms set forth herein apply to a service not ordered by Customer, such terms shall not apply to Customer.

1. HEADINGS; DEFINITIONS. Section headings are for convenience only and do not define or limit the scope of any provision hereof. Any term designated by an initial capitalized letter shall have the meaning ascribed to it herein; “includes” and “including” shall mean “includes/ing without limitation” and the following terms shall be defined accordingly:
   
   “Affiliates”: Means any individual, corporation, partnership, association or business that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with COMPANY.
   
   “Customer Data”: Any personal and business information of the Customer provided to COMPANY under this Agreement or contained within the Microsoft Dynamics NAV System to which COMPANY and/or its Affiliates have access. Customer Data shall not include Trading Partner Maps provided by COMPANY, which are protected as Trade Secrets of COMPANY under this Agreement.“
   
   Confidential Information”: Nonpublic proprietary information of the disclosing party, other than Trade Secrets, of value to its owner, and any data or information defined as a Trade Secret but which is determined by a court of competent jurisdiction to be trade secret under applicable law.
   
   “Intellectual Property Rights”: Means any and all now known or hereafter known tangible and intangible worldwide patents, copyright, moral rights, trademarks, trade secrets, confidential information or other intellectual property rights, whether arising by operation of law, contract, license, or otherwise, and all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in the foregoing).
   
   “Proprietary Information”: Means, collectively, Confidential Information and Trade Secrets (including any such information of third parties possessed by the disclosing party). Proprietary Information shall not include information or materials that the receiving party can demonstrate: (i) were in the public domain prior to the date received by the receiving party hereunder or subsequently came into the public domain through no fault of the receiving party; (ii) were lawfully received by the receiving party by a third party free of any obligation of confidence; or (iii) is or were independently developed by the recipient or any of its employees, consultants or agents without reference to the Proprietary Information of the other party disclosed under this Agreement.
   
   “Services”: The services provided by COMPANY to Customer under this Agreement. Services may include development, consulting, implementation, delivery of, training on, or customization of Software, and any support services related to Software. A list of available services along with their associated fees are attached hereto as Exhibit A.
   
   “Software”: The software programs licensed by COMPANY and/or its Affiliates to Customer, whether directly or through a reseller, together with any updates, fixes, modifications, enhancements, error corrections, versions, or derivative works. Software may include any licensed NAV-X Granule, NAV-X extension, or NAV-X D365 appsource extension.
   
   “Work Order” or “WO”: An additional document that will need to be completed by COMPANY and executed by Customer specifying the nature of the work to be performed, and the type, length and location of the Services.
   
   “Term”: Collectively, Initial and Renewal Terms. Individually:
   “Initial Term”: The one (1) year period following the Effective Date.
   “Renewal Term”: Each one (1) year period, the first of which begins on the first day of the month immediately following the end of the Initial Term.
   
   “Trade Secrets”: Information of the disclosing party which: (i) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
   
   “Work Product” Means all right, title and interest, including but not limited to all Intellectual Property Rights in any and all deliverables, technical information, specifications, drawings, records, documentation, creative works, concepts, or data (including, without limitation, any improvements of the foregoing) whether written, oral or otherwise which arise out of, relate to or result from this Agreement.
   
   
2. CUSTOMER OBLIGATIONS.
   1. Microsoft Dynamics ERP Solution. Unless otherwise agreed to by COMPANY in the WO, Customer shall be responsible for the viable implementation of their Microsoft Dynamics ERP Solution (this currently includes: Microsoft Dynamics NAV, Microsoft Dynamics D365 Business edition, Microsoft Dynamics D365 Enterprise Edition), including Master data and Financial Set-up, prior to COMPANY assisting with implementation of the Software. Customer acknowledges and agrees that this Agreement excludes all services related to the implementation, set up, customization, and maintenance of the standard Microsoft Dynamics ERP system.
   2. Cooperation. Customer shall provide COMPANY with good faith cooperation and access to such information, facilities, personnel, and equipment as may be reasonably required by COMPANY in order to provide the Services, including, but not limited to, providing data, access, information, and software interfaces to Customer’s applications as may be reasonably requested by COMPANY from time to time. Customer acknowledges and agrees that COMPANY’s performance is dependent upon the timely and effective satisfaction of COMPANY’s requests hereunder and timely decisions and approvals of Customer in connection with the Services.
   3. Customer Representatives. Customer shall designate two (2) authorized individuals to act on behalf of Customer with regard to this Agreement and execute all WOs to this Agreement (“Customer Representatives”), who may be changed with written notice to COMPANY. The first Customer Representatives are stated at Customer’s signature block below. Customer Representatives must attend all communications with the applicable trading partner unless otherwise agreed to in the applicable WO.
      
      
3. SERVICES
   1. Services. This Agreement contemplates the request by Customer and performance by COMPANY of various Services related to Software. COMPANY agrees to provide Services requested by Customer from time to time (i) as set forth in an applicable WO, or (ii) if there is no WO, pursuant to an order requested by customer and accepted by COMPANY.
   2. Changes and Delays. In the event Customer desires to alter the scope of work with respect to any WO or order after being accepted by COMPANY, COMPANY shall advise Customer of any adjustment of the payment rate or time scheduled stated in the original WO. If the adjustment is acceptable to Customer, COMPANY will issue a new or revised WO. To the extent work is delayed as a result of changes to a project or a delay by Customer, COMPANY shall not be responsible therefor.
      
      
4. FEES; PAYMENT TERMS
   1. Fees. The fees for Services shall be as stated on the applicable WO. In the event that the Services are not provided pursuant to an WO, or the fees for such Services are not set forth in an SOW, then fees for such Services shall be billed at COMPANY’s then current rates (including any requests by Customer for support and maintenance).
   2. Expenses. Customer shall reimburse COMPANY for all out-of- pocket (including travel and living) expenses incurred by COMPANY in performing its obligations hereunder. COMPANY shall arrange for its own travel and invoice Customer for such expenses. Travel time is billed at 100% of COMPANY’s current rates on any engagement less than three full days in length.
   3. Due Dates. COMPANY shall invoice Customer for the Services as stated in the applicable WO, or, if not designated in any WO, on a weekly basis. Unless otherwise specified or agreed by the parties, all payments hereunder are due within thirty (30) days after the date of invoice. All payments shall be made in US dollars unless otherwise agreed to by the parties in writing.
   4. Deposits and Cancellations. COMPANY requires that Customer deposit 50% of the anticipated hourly charges and expenses associated with any WO or accepted order prior to the commencement of work (“Anticipated Fees and Expenses”). If the Customer subsequently cancels or reschedules such Services, , Customer shall pay to COMPANY a liquidated fee equal to 25% of the Anticipated Fees and Expenses to defray the cost of having COMPANY’s resources in a non-billable situation.
   5. Taxes and Other Charges. All amounts specified herein and the WO are net amounts to be received by COMPANY and are exclusive of, and Customer shall be responsible for and shall pay, any and all taxes, duties, and charges incurred in the performance of this Agreement wherever incurred (but excluding corporate income taxes of COMPANY), whether payable directly by Customer or indirectly through COMPANY in compliance with applicable law. All such obligations shall be Customer’s responsibility and are not subject to set-off, reduction, or deduction for any reason whatsoever.
   
   
5. LATE PAYMENT. Late payment charge equal to the lesser of the maximum legal rate or 1.50% per month for any outstanding charges or portions thereof not paid by Customer to COMPANY as provided herein. COMPANY shall be entitled to withhold performance until such amounts are paid in full. Customer shall reimburse COMPANY for all costs of collection, including reasonable attorneys’ fees.
   
   
6. CONFIDENTIALITY & OWNERSHIP
   1. Ownership. As between the parties, COMPANY shall own and retain all right, title, interest and Intellectual Property Rights in and to the Work Product, Software, and Proprietary Information of COMPANY (including that of COMPANY’s licensors and Affiliates), including without limitation all source and object code, specifications, designs, processes, techniques, concepts, improvements, discoveries and inventions, including without limitation any modifications, improvements or derivative works thereof and all works of authorship created, invented, reduced to practice, authored, developed, or delivered (by whomever created), arising from this Agreement or any amendment to it, including without limitation all copies and portions thereto, whether made by or under the direction of COMPANY or Customer.
   2. Customer Ownership. Customer owns and shall retain all right, title and interest in and to the Customer Data and Proprietary Information of Customer.
   3. Nondisclosure. Customer agrees not to disclose any confidential information that Customer receives from COMPANY, whether oral, written or in other form (including access and use to software and Company processes and procedures), and that is identified by Company as confidential or proprietary, to any employee who does not have a specific need to use such information, or to any outside party without Company’s written consent. All employees or contractors who receive such confidential or proprietary information must be bound by written agreement not to disclose such information to any outside party without Company’s written consent.
      1. Definition. “Confidential Information” means any information, technical data, or know-how (including, but not limited to, information relating to research, products, software, services, developments, inventions, processes, facilities, engineering, techniques, customers, costs, pricing, internal procedures, business and marketing plans or strategies, finances, employees and business opportunities) disclosed by either party (the “Disclosing Party”) to the other party (the “Receiving Party”) or its officers, directors, employees, contractors, representatives or agents (including, but not limited to, financial advisors, attorneys and accountants) (collectively, the “Representatives”) either directly or indirectly in any form whatsoever (including, but not limited to, in writing, in machine readable or other tangible form, orally or visually): (i) that has been marked as confidential; (ii) whose confidential nature has been made known by Disclosing Party, orally or in writing, to Receiving Party; or (iii) that due to its character and nature, a reasonable person under like circumstances would treat as confidential.
      2. Exclusions. Confidential Information does not include information, technical data or know-how which: (i) is known by Receiving Party at the time of disclosure; (ii) is or becomes known to the public through no fault or breach of this Agreement by Receiving Party; (iii) is approved for release by written authorization of Disclosing Party; (iv) is disclosed to Receiving Party by a third party not in violation of any obligation of confidentiality; or (v) is independently developed by Receiving Party without reference to the Confidential Information.
      3. Non-Disclosure. Receiving Party agrees not to disclose the Confidential Information to any third parties or to any of its Representatives except those Representatives who have a need to know the Confidential Information for accomplishing the stated purposes described herein. Prior to any such disclosure, Receiving Party shall advise each Representative recipient of any Confidential Information of the confidential nature of such information. Receiving Party will cause such Representatives to observe the terms of this Agreement, and will be responsible for any breach of this Agreement by any of such Representatives. Receiving Party agrees that it shall treat the Confidential Information with the same degree of care as it accords to its own confidential information of a similar nature; provided that in no event shall Receiving Party exercise less than reasonable care to protect the Confidential Information.
      4. Third Party Information. Neither party shall communicate any information to the other in violation of the proprietary rights of any third party.
      5. Return or Destruction of Materials. At any time upon the request of Disclosing Party, Receiving Party will either destroy or return to Disclosing Party all materials in its possession which contain any Confidential Information, and shall, at Disclosing Party’s written request, certify in writing that all copies (in any form or media) have been destroyed or returned to Disclosing Party. If Receiving Party cannot destroy or return the Confidential Information due to federal or state regulations or professional or industry standards that require the retention of such Confidential Information, Receiving Party will certify in writing that the Confidential Information has been retained for one or more of the foregoing purposes and will keep such information confidential in accordance with the terms of this Agreement. It is also understood that it may be difficult to destroy all copies of electronic records containing the Confidential Information. In that regard, it is agreed that Receiving Party will take commercially reasonable measures to destroy electronic records containing the Confidential Information upon request, but in any event, Receiving Party will take commercially reasonable measures to continue to comply with the confidentiality obligations under this Agreement for any electronic record containing Confidential Information that is not destroyed.
      6. Termination; Survival. Receiving Party’s obligations under this Agreement shall commence at the date of this Agreement and continue for a period of five (5) years after termination hereof.
         
         
7. DISCLAIMERS; LIMITATIONS OF LIABILITY
   1. Disclaimer of Warranties. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICES AND WORK PRODUCT ARE PROVIDED “AS IS” AND THAT COMPANY MAKES NO (AND HEREBY DISCLAIMS ALL) WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND WHATSOEVER, WHETHER WRITTEN OR ORAL, OR EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AGAINST INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE SERVICES OR WORK PRODUCT.
   2. Limitation of Liability. COMPANY WILL NOT BE LIABLE FOR LOST PROFITS, LOST OPPORTUNITIES; OR INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES UNDER ANY CIRCUMSTANCES OR THEORY OF RECOVERY, INCLUDING BUT NOT LIMITED TO CONTRACT, TORT, STATUTE OR EQUITY. UNDER NO CIRCUMSTANCE MAY COMPANY’S LIABILITY TO CUSTOMER UNDER ANY AND ALL PROVISIONS OF THIS AGREEMENT OR ANY OTHER THEORY OF RECOVERY, INCLUDING BUT NOT LMITED TO CONTRACT, TORT, STATUTE OR EQUITY, EXCEED THE TOTAL FEES FOR SERVICES ACTUALLY PAID TO COMPANY FOR THE IMMEDIATELY PRECEDING MONTH IN WHICH A CLAIM ARISES HEREUNDER, REDUCED BY ANY AMOUNT DUE COMPANY BY CUSTOMER. IN NO EVENT, WILL EITHER PARTY BE LIABLE TO THE OTHER FOR INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES EVEN IF THE CLAIMING PARTY HAS BEEN ADVISED OF SUCH DAMAGES PRIOR TO THEIR OCCURRENCE.
   3. Survival. The parties agree that this Section 6 shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy.
      
      
8. TERM & TERMINATION
   1. Term. This Agreement shall commence on the Effective Date and shall continue for the Initial Term. The Term shall automatically renew for a Renewal Term thereafter, unless earlier terminated as provided below.
   2. Termination. This Agreement may be terminated with notice to the other party only as follows:
      1. By either party with written notice to the other party sixty (60) days prior to the end of the Initial Term or any Renewal Term. To the extent any WO is executed, or order accepted, on or before any expiration or termination date hereunder, such WO or order shall be completed and paid and the terms and conditions of this Agreement shall continue in full force and effect until the completion or performance of the WO or order.
      2. By either party, if the other party materially breaches any term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of notice thereof (except with respect for Customer’s payment obligations in which case COMPANY shall be entitled to immediately terminate this Agreement).
      3. In addition, the Agreement may be terminated (i) by COMPANY if Customer: (i) fails to make any payment within five (5) business days of its due date; or (ii) becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits an appointment of a receiver for its business or assets, becomes subject to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign, or is liquidated, voluntarily or otherwise; or if any substantial change takes place in Customer’s management, ownership, or control resulting in management, ownership, or control of such party by a competitor of COMPANY , or by a company or other entity with a division or subsidiary that is a competitor of COMPANY , and (ii) by Customer if COMPANY becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits an appointment of a receiver for its business or assets, becomes subject to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign, or is liquidated, voluntarily or otherwise.
   3. Effects of Termination. Upon termination or expiration of this Agreement for any reason whatsoever:
      1. All rights shall immediately cease except as otherwise provided hereunder, and Customer shall immediately cease use of the Services and return to COMPANY with all copies of all COMPANY Proprietary Information, and provide COMPANY written certification thereof.
      2. COMPANY shall destroy Customer Data and Customer Proprietary Information thirty (30) days after termination (“Destruction Date”). Customer shall be provided the opportunity to retrieve its data prior to the Destruction Date so long as COMPANY is notified in that timeframe.
      3. All terms, which by their content or context are intended to survive termination or expiration of this Agreement, including Sections 1, 4, 5, 6, 7.3, 8 and 9 shall so survive in full force and effect.
         
         
9. DISPUTE RESOLUTION In the event of any disputes between the parties relating to or arising out of this Agreement, and prior to any resort to court, the matter in dispute shall first be submitted by written notice to a designated member of senior management for each of the parties, who have authority to settle the controversy and have direct operational responsibility for the matters contemplated by this Agreement and who shall meet promptly and negotiate in good faith and use their best efforts to resolve such dispute.
   
   
10. MISCELLANEOUS
    1. Assignment. Customer may not assign this Agreement without the prior written consent of COMPANY which will not be unreasonably withheld.
    2. Force Majeure. No party shall be liable for failure to perform or delay in performing all or any part of its obligations under this Agreement to the extent that they are unable to perform and is directly or indirectly due to any cause or circumstance beyond the reasonable control of such party including, without limitation, acts of God, fire, flood, storms, earthquake, strike or other labor dispute (collectively “Force Majeure”). The party affected by an event of Force Majeure shall promptly notify the other party in writing. The party so affected shall take reasonable steps to resume performance with the least possible delay.
    3. Language. The language of this Agreement, and any documents required by it or arising in connection with it as well as any negotiations between the parties shall be English.
    4. Authority. Each party possesses full power and authority to enter into this Agreement and to fulfill its obligations hereunder.
    5. Amendments. This Agreement may not be amended, modified or superseded, unless expressly agreed to in writing by both parties.
    6. Governing Law. This Agreement is in all respects to be exclusively construed, governed and enforced in accordance with the internal laws of the State of New Jersey, USA, excluding all conflict of laws rules as from time to time amended and in effect. Venue shall be in the State or Federal Courts sitting in Monmouth County, New Jersey.
    7. Injunctive Relief. In the event Customer is in breach, or threatens to breach any covenants of this Agreement, Customer acknowledges and agrees that COMPANY will be greatly damaged, such breach(es) will be irreparable and difficult to quantify; therefore, COMPANY may apply to any court of competent jurisdiction in the United States or any other jurisdiction accepting jurisdiction under this specific provision of the Agreement, who, notwithstanding the provisions of Section 9.6 (Governing Law), will apply the laws of its own jurisdiction in determining whether relief shall be granted to COMPANY , for injunctive or other equitable relief to restrain such breach or threat of breach, without impairing, invalidating, negating or voiding COMPANY’s rights to relief either at law or in equity.
    8. Compliance with Laws. Each party shall comply with all applicable laws, ordinances, rules and regulations of governmental authorities.
    9. Notices. All notices under this Agreement shall be given in writing and shall be delivered either by hand, by internationally recognized overnight courier, fees pre-paid by sender, addressed to the receiving party at the address set forth at the signature blocks below, or at such other address as may be designated from time to time. Notices shall be deemed delivered upon the earlier of actual receipt or three (3) days after deposit of such notice, properly addressed and delivery fees paid, with the overnight courier.
    10. Severability and Waiver. If any provision of this Agreement is determined to be invalid by any court of final jurisdiction, then it shall be omitted and the remainder of the Agreement shall continue to be binding and enforceable. In addition, the Court is hereby authorized to enforce any provision of the Agreement that the Court otherwise deems unenforceable, to whatever lesser extent the Court deems reasonable and appropriate, rather than invalidating the entire provision. Except where otherwise provided, the waiver or failure of either party to exercise in any respect any right provided under this Agreement shall not be deemed a waiver of any further right under this Agreement.
    11. Precedence. In the event a conflict exists between this document and any Work Order (WO) or written order, the Work Order (WO) or written order shall govern.
    12. Entire Agreement. This Agreement (together with all Exhibits and executed Statements of Work) sets forth the entire understanding between the parties and supersedes any and all oral or written agreements or understandings between the parties as to the subject matter of this Agreement.