EVERCARE SERVICE PLAN AND WARRANTY AGREEMENT

This EverCare Service Plan and Warranty Agreement, as amended from time to time (the “EverCare Agreement”), are entered into by and between Nexa3D Inc., a Delaware corporation with offices at 1923 Eastman Avenue, Ventura, CA 93003 (“Nexa3D”) and the customer identified in a Sales Order that references this Agreement (“Customer”). The EverCare Agreement and any Sales Order dated after 5/2/2023 that references the EverCare Agreement are collectively referred to herein as the “Agreement”. By accessing or using the Services (as defined below) or clicking a button or checking a box marked “Submit”, “I Agree”, “I Accept”, or something similar, or by otherwise affirmatively manifesting your assent to this Agreement, Customer signifies that Customer has read, understood, and agrees to be bound by this Agreement. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Terms and Conditions (as defined below).

1. Certain Definitions.

   “Agreement Term” means the period starting from the Effective Date, and continuing for twelve (12), twenty-four (24) or thirty-six (36) months based on the length of purchase as defined in the Sales Order.

   “Applicable Laws” means all existing and future federal, state, provincial, regional, territorial and local laws, international treaties, statutes, statutory instruments, ordinances, regulations, rules, executive orders, supervisory requirements, directives, circulars, opinions, interpretive letters and other office releases, guidelines, and policies with the force of law, of or by any government, or any governmental authority, department, or agency thereof (including all federal and state banking laws, regulations, guidance, and policies), or any court of competent jurisdiction that are applicable to the parties in their performance of their obligations or exercise of their rights under this Agreement.

   “Authorized Servicers” means companies that successfully complete training in Equipment installation, maintenance, and customer service and are capable and authorized by Nexa3D of providing Services to customers of the Equipment.

   “Customer Inputs” means information Customer provides, posts, uploads, publishes, transmits or distributes on or through the Services.

   “Documentation” means any documentation provided by Nexa3D in connection with the Services.

   “Effective Date” means the earlier of: (a) 30 days after the Sales Order Date or (b) the date on which Customer has registered a Printer or piece of Equipment covered under this plan.

   “Equipment” means the physical equipment, either 3D printers or other processing equipment, which the Agreement intends to cover.

   “EverCare Experts” means the support service agents authorized by Nexa3D to provide the Services.

   “Fees” means any amounts payable by Customer to Nexa3D pursuant to this Agreement. Amounts payable to other parties pursuant to this Agreement are not considered fees for the purposes of Section 4.2.

   “Marks” means trade names, trademarks, service marks, trade dress, logos and other rights in indicia.

   “Registration” means the Customer act of designating the Equipment covered under this Agreement by transmitting model and serial name information to Nexa3D

   “Sales Order” means a written proposal and agreement, order, purchase order or other similar ordering document mutually agreed-upon by the parties that incorporates this Agreement by reference.

   “Terms and Conditions” means the Nexa3D Inc. Terms and Conditions, available at https://nexa3d.com/terms-and-conditions/.

2. Provision of Service and Documentation.
   1. Services. Nexa3D or Authorized Servicers will provide certain support services (“Services”) to Customer including installation, training, and maintenance of the Equipment according to the Services outlined in Exhibit A. All work performed for Customer shall be subject to the terms and conditions of this Agreement.
   2. Extended Warranty. Upon the conclusion of the Standard Hardware Warranty Period, as described in the Terms and Conditions, the Equipment properly identified by Registration shall be covered under the Hardware Limited Warranty for an extended period covering the full Agreement Term (“Extended Warranty”). Failure to promptly register Equipment may result in denial of an Extended Warranty claim. Section 7 of the Terms and Conditions is hereby incorporated by reference into this Agreement. with the proviso that references in Section 7 of the Terms and Conditions to “the Agreement” will mean this Agreement, and together with any other necessary conforming changes.
   3. Authorized Users. Upon Registration of this Agreement, individuals employed or duly authorized by the Customer are permitted to use the Services and interact with the EverCare Experts under the terms of this Agreement (collectively, the “Authorized Users”).
   4. Restrictions. Customer will not use the Services or Documentation for any purposes beyond the scope of the rights granted in this Agreement. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Customer will not at any time, directly or indirectly: (a) use or copy the Services or Documentation, in whole or in part, except as permitted hereunder; (b) use the Services or Documentation as a service bureau or otherwise for the benefit of a third party; (c) rent, lease, loan or otherwise in any manner provide or distribute the Services or any copy thereof to any third party; (d) misappropriate any data or information from the Services or Documentation; (e) disrupt the functioning of the Services; (f) otherwise act in a manner that interferes with Nexa3D’s operation of the Services or with the use of the Services by others; (g) gain any unauthorized access to the Services or Documentation for any other purpose or access or use the Services to circumvent or exceed usage limitations; (h) modify, decompile, reverse engineer, disassemble, remove, alter, circumvent, or otherwise tamper with the Service, Documentation, or any security technology, software, or rights management information contained within the Services or in any software used to enable the Services; (i) modify or remove any copyright, trademark or other proprietary rights notice on any software or other materials contained within the Services or Documentation; (j) use the Services or Documentation for purposes of developing, using, or providing a product or service that competes with, or provides similar functionality to, the Services; (k) access or use the Services to submit or transmit any computer viruses, worms, defects, Trojan horses or other items of a destructive nature or to send any commercial solicitation or spam (whether commercial in nature or not); (l) exploit the Services in any unauthorized way whatsoever, including without limitation by trespass or burdening server or network capacity or Services infrastructure (including transmitting files containing viruses, corrupted files, spyware, adware, or any other software or programs, or deploying “spiders,” “web-bots,” “screen-scrapers,” or “web crawlers” that may damage or adversely affect server or network capacity or Services infrastructure); or (m) attempt, or encourage or assist any third party to do, any of the foregoing.
   5. Usage Data. Nexa3D may collect, maintain, process and use, or Customer may provide to Nexa3D, diagnostic, technical, usage and related information, including information about Customer’s Printer, computers, systems and software (“Usage Data”). Customer agrees that all Usage Data is owned solely and exclusively by Nexa3D, and Nexa3D accordingly may use such Usage Data for any lawful purpose, including to: (a) provide and maintain the Services for Customer; (b) develop and improve the Service; (c) monitor Customer’s usage of the Services; (d) for research and analytics and for Nexa3D’s other business purposes; and (e) share analytics and other derived Usage Data with third parties solely in deidentified or aggregated form. The Services may contain technological measures designed to prevent unauthorized or illegal use of the Services. Customer acknowledges and agrees that Nexa3D may use these and other lawful measures to verify Customer’s compliance with the terms of this Agreement and enforce Nexa3D’s rights, including all intellectual property rights, in and to the Service.
   6. Reservation of Rights. Nexa3D reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Services or Documentation.
   7. Customer Responsibilities. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer will take reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services and Documentation and will cause Authorized Users to comply with such provisions.
3. Ownership and Data Rights.
   1. Ownership. As between Nexa3D and Customer: (a) Customer owns all right, title and interest in and to any and all of its Customer Inputs; and (b) Nexa3D owns all right, title and interest in and to the Service, Documentation, and Usage Data, including but not limited to all intellectual property and other proprietary rights therein and thereto.
   2. Customer License. Customer hereby grants to Nexa3D during the Agreement Term a fully paid-up, royalty-free, worldwide, nonexclusive right and license, to use the Customer Inputs as necessary to perform its obligations under this Agreement (including providing the features and functionality of the Services to Customer) and for such other purposes identified in the Nexa3D privacy policy, available at https://nexa3d.com/privacy-policy/, as it may be updated by Nexa3D from time to time (“Privacy Policy”).
4. Fees; Payment.
   1. Fees. Customer shall pay the Fees pursuant to the applicable Sales Order. Fees payable to Nexa3D are non-refundable unless otherwise set forth in this Agreement or as required by Applicable Laws. All amounts payable to Nexa3D under this Agreement shall be paid by Customer to Nexa3D in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by Applicable Laws). Nexa3D accepts various payment methods through payment processors, and Customer hereby agrees to be bound by any applicable terms related to Customer’s usage of such payment processors.
   2. Late Payments. Overdue payments will be subject to interest at the rate of one and one-half percent (1.5%) per month, or the maximum allowable under Applicable Laws, whichever is less, and Customer will indemnify and hold Nexa3D harmless from and against any costs incurred in connection with its collection of any Fees or interest properly due hereunder. If such failure to pay continues for ten (10) days following written notice thereof, Nexa3D may: (a) withhold, suspend or revoke its grants of rights hereunder; and/or (b) terminate this Agreement under Section 5.2.
   3. Taxes. Customer will be responsible for the payment of any and all local, state, federal, or foreign taxes, levies, and duties of any nature, including value-added, sales, use, and withholding taxes (“Taxes”). Customer is responsible for paying all Taxes, excluding only taxes based on Nexa3D’s net income. If Nexa3D has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 4.3, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Nexa3D with a valid tax exemption certificate authorized by the appropriate taxing authority.
5. Agreement Term and Termination.
   1. Effective Date and Agreement Term. Unless earlier terminated in accordance with this Section 5, this Agreement and the rights granted hereunder shall be effective as of the Effective Date and shall continue through the Agreement Term.
   2. Termination for Cause. Either party shall have the right to terminate this Agreement immediately upon written notice to the other party: (a) if the other party breaches or fails to perform or observe any material term or condition of this Agreement and such default has not been cured within thirty (30) days after written notice of such default to the other party; or (b) if the other party (i) terminates or suspends its business, (ii) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute, (iii) becomes insolvent or subject to direct control by a trustee, receiver or similar authority, or (iv) has wound up or liquidated, voluntarily or otherwise.
   3. Effect of Termination. On the expiration or earlier termination of this Agreement: (a) all rights, licenses and authorizations granted to Customer will immediately terminate, and Customer will: (i) immediately cease all use of and other activities with respect to the affected Service and Documentation; (ii) within five (5) days, return to Nexa3D or, upon Nexa3D’s request, destroy, and permanently erase from all devices and systems Customer directly or indirectly controls, Nexa3D’s Confidential Information and materials containing any Confidential Information of Nexa3D; and (iii) deliver to Nexa3D a certification, in writing signed by a duly authorized representative of Customer, that the Confidential Information and all copies thereof have been returned or destroyed, and their use discontinued; provided, however, that neither Customer nor any of its representatives shall be obligated to return or destroy Confidential Information to the extent it has been electronically archived by any such party in accordance with its automated security and/or disaster recovery procedures as in effect from time to time. Nothing contained herein shall limit any other remedies that either party may have for the default of the other party under this Agreement nor relieve either party of any of its obligations incurred prior to such termination; and (b) all amounts payable by Customer to Nexa3D of any kind are immediately payable and due no later than thirty (30) days after the effective date of the expiration or termination of this Agreement. If Nexa3D terminates this Agreement pursuant to Section 5.2(a), Nexa3D will not refund to Customer any Fees prepaid by Customer for time remaining during the Subscription Term. If Customer terminates this Agreement pursuant to Section 5.2(a), Nexa3D will provide to Customer a refund of Fees prepaid by Customer for the time remaining during the Agreement Term.
   4. Survival. Sections 1, 2.4, 2.5, 2.6, 2.7, 3, 4, 5.3, 5.4, 6 (for three (3) years after termination or expiration of this Agreement or, with respect to trade secrets, until such trade secrets are no longer protected as such under Applicable Laws), 7, 8, 9, 10.1 (solely with respect to claims arising during the Subscription Term), 10, 11, 12, and 13 shall survive termination of this Agreement.
6. Confidentiality.
   Section 18 of the Terms and Conditions is hereby incorporated by reference into this Agreement, with the proviso that references in Section 18 of the Terms and Conditions to “the Agreement” will mean this Agreement, and together with any other necessary conforming changes.
7. Privacy and Security.
   Customer understands that by using Nexa3D’s products and services, Customer agrees to Nexa3D’s collection, use and disclosure of certain Customer personal information and other Customer Inputs as set forth in the Privacy Policy. Customer understands that Nexa3D cannot guarantee that unauthorized third parties will never be able to defeat Nexa3D’s security measures or use Customer personal information or other Customer Inputs for improper purposes. Customer acknowledges that it provides personal information and other Customer Inputs at its own risk. For the purposes of these Terms, “personal information” is defined in the Privacy Policy.
8. Suggestions and Improvements.
   Customer may choose to or Nexa3D may invite Customer to submit comments or ideas about Nexa3D’s products and services, including without limitation the Services and Documentation (“Feedback”). By submitting any Feedback, Customer agrees that its disclosure is gratuitous, unsolicited and without restriction and will not place Nexa3D under any fiduciary or other obligation, and that Nexa3D is free to use the Feedback without any additional compensation to Customer or anyone else, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. Customer further acknowledges that, by acceptance of Customer’s submission, Nexa3D does not waive any rights to use similar or related ideas previously known to Nexa3D, or developed by its employees, or obtained from sources other than Customer.
9. Representations and Warranties.
   1. Customer Representation and Warranties. Customer represents and warrants to Nexa3D that:
      1. it is duly organized, validly existing and in good standing as a corporation or other entity under the applicable laws of the jurisdiction of its incorporation or other organization,
      2. it has the full right, power and authority to enter into, and to perform its obligations under this Agreement,
      3. the execution of this Agreement by its representative who has accepted this Agreement has been duly authorized by all necessary corporate or organizational action of such party, and
      4. this Agreement will constitute the legal, valid and binding obligation of the parties, enforceable against Customer in accordance with its terms.
10. Warranty Disclaimer.
    Section 6 of the Terms and Conditions is hereby incorporated by reference into this Agreement, with the proviso that references in Section 6 of the Terms and Conditions to “the Agreement” will mean this Agreement, and together with any other necessary conforming changes.
11. Indemnification.
    1. Intellectual Property Indemnification. Section 14 of the Terms and Conditions is hereby incorporated by reference into this Agreement, with the proviso that references in Section 14 of the Terms and Conditions to “the Agreement” will mean this Agreement, and together with any other necessary conforming changes.
    2. Customer Indemnification. Section 15 of the Terms and Conditions is hereby incorporated by reference into this Agreement, with the proviso that references in Section 15 of the Terms and Conditions to “the Agreement” will mean this Agreement, and together with any other necessary conforming changes.
    3. Sole Remedy for Infringement. THIS SECTION 10 SETS FORTH NEXA3D’S ENTIRE LIABILITY AND CUSTOMER’S SOLE REMEDY FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH THE SERVICES AND THIS AGREEMENT.
12. Limitation of Liability.
    Section 8 of the Terms and Conditions is hereby incorporated by reference into this Agreement, with the proviso that references in Section 8 of the Terms and Conditions to “the Agreement” will mean this Agreement, and together with any other necessary conforming changes.
13. Compliance with Laws.
    Each party will comply with all Applicable Laws.
14. Miscellaneous.
    1. Assignment. Section 25 of the Terms and Conditions is hereby incorporated by reference into this Agreement, with the proviso that references in Section 25 of the Terms and Conditions to “the Agreement” will mean this Agreement, and together with any other necessary conforming changes.
    2. Delays. Section 21 of the Terms and Conditions is hereby incorporated by reference into this Agreement, with the proviso that references in Section 21 of the Terms and Conditions to “the Agreement” will mean this Agreement, and together with any other necessary conforming changes.
    3. Governing Law; Dispute Resolution. Sections 23 and 24 of the Terms and Conditions is hereby incorporated by reference into this Agreement, with the proviso that references in Section 14 of the Terms and Conditions to “the Agreement” will mean this Agreement, and together with any other necessary conforming changes.
    4. Relationship of the Parties. Section 26 of the Terms and Conditions is hereby incorporated by reference into this Agreement, with the proviso that references in Section 26 of the Terms and Conditions to “the Agreement” will mean this Agreement, and together with any other necessary conforming changes.
    5. Notices. All notices permitted or required under this Agreement shall be in writing and shall be deemed to have been given: (a) when delivered in person (including by overnight courier); (b) three (3) business days after being mailed by first class, registered or certified mail, postage prepaid, to the address of the party specified in this Agreement or such other address as either party may specify in writing; or (c) when delivered (receipt return requested) by email. All email notices, and an email copy of any paper notice, to Nexa3D must be sent to legal@nexa3d.com.
    6. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.
    7. Advice of Legal Counsel. Each party acknowledges and represents that, in executing this Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of this Agreement. This Agreement shall not be construed against any party by reason of the drafting or preparation thereof.
    8. Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the EverCare Agreement, the prevailing party shall be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
    9. Entire Agreement; Modification; Waiver; Severability. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings, written or oral, with respect to the matters covered by this Agreement, and is not intended to confer upon any third party any rights or remedies hereunder. In the event of any conflict between this Agreement and any other agreement Customer may enter into with Nexa3D, this Agreement shall control. Customer acknowledges that it has not entered in this Agreement based on any representations other than those contained herein. The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default. If any provision of this Agreement is held invalid or unenforceable under Applicable Laws by a court of competent jurisdiction, it shall be replaced with the valid provision that most closely reflects the intent of the parties and the remaining provisions of the Agreement will remain in full force and effect.