SERVICE EVALUATION AGREEMENT

This Service Evaluation Agreement (this “Agreement”) is made by and between Vu Digital, LLC, a Mississippi limited liability company with its principal place of business at 1018 Highland Colony Parkway, Suite 330, Ridgeland, MS 39157 (“Vu”), and the customer executing this Agreement and/or electronically acknowledging its agreement to the terms of this Agreement (“Customer”) and it is effective on the date executed by Customer (the “Effective Date”). Vu and Customer are each sometimes referred to herein as a “Party” and collectively as the “Parties”.

  1. SERVICE ACCESS AND TERM.
    1. Service Access. Subject to Customer’s compliance with the terms and conditions of this Agreement, Vu agrees to provide up to 100 hours of Services to Customer during the Term. No service level guarantees are provided in connection with Customer’s access to and use of such Services during the Term.
    2. Service Charge. There shall be no charge to Customer for the Services during the Term.
    3. Trial Term. Vu shall provide the Services to Customer pursuant to the terms and conditions of this Agreement for a period of thirty (30) days from the Effective Date (the “Term”).
    4. Termination. This Agreement will automatically terminate at the end of the Term. Vu may terminate this Agreement immediately and discontinue the provision of the Services upon written notice to Customer in the event that Customer breaches this Agreement.
    5. Effect of Termination. Upon any termination or expiration of this Agreement: (a) rights granted to Customer under this Agreement automatically terminate; and (b) within five (5) days after any such termination or expiration, each Party will, at its expense, (i) return to the other Party or destroy all copies of any of the Disclosing Party’s Confidential Information (defined below) in the Receiving Party’s possession or control, and (ii) an officer of the Receiving Party will certify in writing to the Disclosing Party that it has complied with the foregoing.
  2. FEEDBACK AND NO SUPPORT. Customer will provide feedback to Vu regarding the results of Customer’s evaluation of the Services. Customer hereby understands that no formal support is provided by Vu to Customer under this Agreement.
  3. OWNERSHIP. Customer acknowledges and agrees that, as between the Parties, Vu owns all right, title and interest in and to the Services and all aspects thereof, including all software associated therewith and all intellectual property rights therein. Customer will not earn or acquire any rights or licenses in the Services or in any Vu intellectual property rights as a result of this Agreement or Customer’s use of the Services under this Agreement.
  4. CONFIDENTIAL INFORMATION.
    1. Definition. “Confidential Information” means any business or technical information that is disclosed or otherwise made available, in any form whatsoever, by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in connection with this Agreement and is designated by the Disclosing Party as “confidential” or “proprietary”, or should be understood by the Receiving Party, exercising reasonable business judgment, to be confidential or proprietary information of the Disclosing Party. Notwithstanding the foregoing, the Services and their underlying intellectual property are Confidential Information of Vu.
    2. Exclusions. The obligations in Section 4.3 will not apply to the extent any information: (a) is or becomes generally known to the public through no fault or breach of this Agreement by the Receiving Party; (b) is rightfully known by the Receiving Party at the time of disclosure without an obligation of confidentiality; or (c) is rightfully obtained by the Receiving Party from a third party without restriction on use or disclosure.
    3. Restrictions. Receiving Party will not use or disclose any Confidential Information, except as necessary for the performance of this Agreement by Receiving Party. Receiving Party will use all reasonable efforts to protect Confidential Information from unauthorized use or disclosure but in no event less than due care or less than the efforts that it ordinarily uses with respect to its own proprietary information of a similar nature and importance. Receiving Party may disclose Confidential Information only to those of its employees who have a bona fide need to know such Confidential Information for the performance of this Agreement; provided, that each such employee first executes a written agreement (or is otherwise already bound by a written agreement) that contains use and nondisclosure restrictions at least as protective of the Confidential Information as those set forth in this Agreement. Receiving Party agrees to indemnify and hold the Disclosing Party harmless from any loss, cost, damage, or expense associated with Receiving Party’s or its employee’s breach of this Section 4.3. Upon termination of this Agreement Receiving Party will promptly return all tangible Confidential Information to Disclosing Party or destroy such Confidential Information and certify in writing to the Disclosing Party such destruction, as determined in the sole discretion of the Disclosing Party.
    4. Injunctive Relief. Each Party acknowledges that its failure to comply with this Section 4 may cause irreparable harm to the other Party that cannot be adequately compensated in damages and, accordingly, acknowledges that the other Party may seek, in addition to any other remedies available to it, temporary or permanent injunctive relief to restrain any anticipated, alleged, present or continuing breach of this Section 4. The provisions of this Section 4 shall survive termination of this Agreement.
  5. CUSTOMER MATERIALS. Customer may provide Vu with certain digital files or other material (collectively, the “Materials”) for the purpose of testing the Services. Vu shall not use the Materials for any purpose other than performing the Services. Vu has no right or interest to the Materials and all Materials shall remain the property of Customer and shall be returned to Customer or destroyed promptly upon Customer’s written request.
  6. DISCLAIMERS.
    1. Warranty Disclaimers. Customer acknowledges that the Services are being provided “AS IS.” VU DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
    2. Warranties of Customer. Customer hereby represents and warrants to Vu that the Services shall be used strictly in accordance with this Agreement and in compliance with all applicable laws.
  7. LIMITATION ON LIABILITY. EXCEPT FOR A BREACH OF SECTION 4 BY VU, IN NO EVENT WILL VU BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, REVENUES, BUSINESS OR PROFITS, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICES OR FOR ANY ERROR OR DEFECT IN THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT VU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.
  8. GENERAL PROVISIONS.
    1. Assignment. Although fully assignable and transferable by Vu, Customer may not assign this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of Vu. Any attempted assignment without such consent will be null and of no effect.
    2. Governing Law, Attorneys’ Fees, Authority. This Agreement will be governed by and construed in accordance with the laws of the State of Mississippi (excluding its body of law controlling conflicts of law). In any action to enforce this Agreement, the substantially prevailing Party will be entitled to reasonable costs and attorneys’ fees. Each Party has the necessary power and authority to execute and deliver this Agreement, to perform its obligations hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby.
    3. Dispute Resolution. ANY DISPUTE ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE SUBMITTED TO BINDING ARBITRATION UNDER THE FOLLOWING PROCEDURE. If despite the Parties’ efforts, a dispute arising out of or under or relating to this Agreement cannot be resolved, either Party may initiate final, mandatory and binding arbitration pursuant to this Section 8.3. Any arbitration of any dispute shall be subject to the then-effective Commercial Arbitration Rules (the “Rules”) of the American Arbitration Association (“AAA”). The arbitration shall occur in the greater Jackson, Mississippi metropolitan area (Hinds, Madison, and Rankin Counties, Mississippi). The arbitration shall be before an arbitrator agreed to by the Parties within ten (10) days of submission of the dispute to arbitration or, failing agreement, before an arbitrator selected by the Parties in accordance with the AAA Rules. The arbitration award shall be in writing and state the reasons therefor and shall be final and binding and judgment thereon may be entered by any court having jurisdiction over such matters. The agreement to arbitrate disputes hereunder shall not prevent either Party from seeking preliminary or other temporary relief reasonably necessary to protect its rights in advance of or during any arbitration proceedings. Customer expressly agrees to submit itself to the personal jurisdiction of the federal and state courts of Mississippi for purposes of enforcement of this arbitration clause, the enforcement of or entry of judgment upon any arbitration decision, order or award, and any proceedings in which Vu seeks preliminary or temporary injunctive relief as permitted under this Agreement.
    4. Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such provision will be construed so as to be enforceable to the maximum extent permissible by law, and the remaining provisions of the Agreement will remain in full force and effect.
    5. Waiver. The waiver of any breach or default will not constitute a waiver of any other right hereunder or of any subsequent breach or default.
    6. Notices. All notices required or permitted under this Agreement will be in writing and delivered in person, by overnight delivery service, or by registered or certified mail, postage prepaid with return receipt requested, and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth for Vu above and the address provided to Vu by Customer, or to such other address as may be specified by either Party to the other in accordance with this Section 8.6.
    7. Entire Agreement. This Agreement constitutes the entire and exclusive agreement between the Parties pertaining to the subject matter hereof, and supersede any and all prior agreements, communications, and understandings (both written and oral) regarding such subject matter; provided, however, that if there are pre-existing non-disclosure agreements between the Parties, then the confidentiality obligations of the Parties shall be the most strict of the obligations of any of such agreements and this Agreement. This Agreement may only be modified, or any rights under it waived, by a written document executed by both Parties.
    8. Electronic Signatures. The Parties agree that this Agreement may be electronically signed. The Parties agree that the electronic signatures appearing on this Agreement are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility. Vu agrees that this Agreement will be binding upon Vu upon begin electronically signed by Customer.
    9. Survival. The provisions of Sections 1.5, 3, 4, 5, 6, 7, and 8 will survive any termination or expiration of this Agreement.
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