Professional Services Terms

THESE ROCKWELL AUTOMATION, INC., PROFESSIONAL SERVICES TERMS AND CONDITIONS (THESE “SERVICES TERMS”) GOVERN THE SERVICES (AS DEFINED BELOW) TO BE PROVIDED BY ROCKWELL AUTOMATION, INC. (“ROCKWELL”) TO THE CUSTOMER (“CUSTOMER”) PURSUANT TO A WORK ORDER (AS DEFINED HEREIN). BY EXECUTING A WORK ORDER, CUSTOMER IS ACCEPTING AND AGREEING TO THESE SERVICES TERMS AND THE TERMS OF SUCH WORK ORDER, WHICH UPON EXECUTION BECOME PART OF AND SUBJECT TO THESE SERVICES TERMS. THESE SERVICES TERMS AND EACH WORK ORDER EXECUTED BY CUSTOMER TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN CUSTOMER AND ROCKWELL (COLLECTIVELY, THIS “SERVICES AGREEMENT”). EACH WORK ORDER EXECUTED BY CUSTOMER SHALL BE EFFECTIVE AS OF THE DATE SPECIFIED THEREIN OR, IF NO SUCH DATE IS SPECIFIED, THE DATE CUSTOMER EXECUTED THE WORK ORDER. ROCKWELL AND CUSTOMER MAY BE REFERRED TO HEREIN COLLECTIVELY AS THE “PARTIES”.

1. Definitions.

“Affiliate” means a company which is controlled, under common control or controlling a party or entity during the period of such control. For the purposes of this Services Agreement, “control” means ownership, directly or indirectly, of more than 50% of the voting securities of a party or entity.

“Deliverable” means any and all property, reports, analyses, recommendations, data, databases, specifications, software, documentation, items, videos, recordings, and other materials provided, created, developed, and/or delivered pursuant to and as described in a Work Order.

“Law” means any local, state, national, administrative and/or foreign laws, treaties, regulations and/or orders applicable to a Party.

“Plex” and “Plex Subscription Services” mean Plex by Rockwell Automation’s proprietary Web-based platform and associated modules, components and updates thereto provided by Rockwell Automation as a subscription service pursuant to the terms of the Software and Cloud Services Agreement and any Order Forms.

“Services” means the technical, implementation or professional services and any related Deliverables provided or to be provided by Rockwell for Customer under a Work Order describing such services and these Services Terms. The Services performed under a Work Order may be referred to as “Professional Services” or “Technical Services”, as applicable, based on the nature and type of such Services.

“Subscription Agreement” means an Order Form entered into by Customer (or its Affiliate) and Rockwell covering Customer’s access to and use of the Plex Subscription Services.

“Work Order” means a written or electronic (a) work order, (b) statement of work or (c) other ordering document specifically incorporating these Services Terms and all exhibits or other documents attached to or incorporated by reference (“Attachments”) therein, describing the Services purchased by Customer and executed by the Parties or Customer alone, as applicable.

“Work Product” means all software, works of authorship or work developed for Customer in the course of providing the Services, including any Deliverables produced or developed in connection therewith, whether produced solely or jointly with others.

2. Provision of Services.

Subject to the payment by Customer to Rockwell of the applicable Fees (as defined in 3.1), Rockwell will provide the Services under the Work Order. Any scheduling required for the Services to be performed or delivered will be described in the Work Order. Rockwell will not be responsible for providing any services, tasks or items that are not included in the description of services in the Work Order as such services, tasks or items shall be deemed out of scope for such Work Order and will require the execution of an additional Work Order with associated Fees. Rockwell reserves the right, in its sole discretion, to use, assign and remove personnel in performing the Services. If the Services will be made available to any Customer Affiliate(s) pursuant to the terms of this Services Agreement, then the term “Customer” shall also include such Customer Affiliate(s) identified in a Work Order. Rockwell will provide Services under this Services Agreement only to Customer’s (or a Customer Affiliate’s) Authorized Location(s) (as defined in the Subscription Agreement).

3. Fees.

3.1. Invoice and Payment. The fees for the Services provided to Customer are determined in accordance with the terms of the applicable Work Order covering such Services and, together with any other amounts due under this Services Agreement (collectively, the “Fees”), are quoted and payable in United States dollars. Unless otherwise provided in the applicable Work Order, all Fees (except for any disputed Fees then subject to a Billing Dispute under Section 3.6) shall be due and payable within thirty (30) days of the invoice date. Customer shall provide Rockwell with complete and accurate billing and contact information including a valid email address for receipt of invoices. All Fees and payment obligations for Services under any Work Order are non-cancelable and Fees paid are non-refundable and quantities purchased cannot be decreased.

3.2. Incidental and Project Expenses. Customer shall reimburse Rockwell for all reasonable travel, food, lodging and other out-of-pocket expenses incurred in the performance and/or provision of the Services. If Rockwell incurs any additional of the foregoing or additional costs or expenses in providing the Services, such expenses may be invoiced separately.

3.3. Overdue Payments. Without limiting the rights and remedies available to Rockwell under this Services Agreement or by Law, any Fees not paid by Customer (except for any disputed Fees then subject to a Billing Dispute under Section 3.6) within thirty (30) days of the invoice date shall accrue late charges at the rate of one and one-half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by Law, whichever is lower, from the date such payment was due until the date paid, plus all reasonable expenses and fees of collection (including attorneys’ fees and court and administrative costs).

3.4. Taxes. The Fees are exclusive of all shipping costs, and federal, state and local sales, value-added taxes, goods and services taxes, use, excise, service, transaction, gross receipts or similar taxes imposed on the Services (collectively, “Taxes”), any and all of which Customer agrees to pay, excluding taxes assessable against Rockwell on its income, property and employees. Customer shall make all payments required without deduction of any Taxes, except as required by Law, in which case the amount payable shall be increased as necessary so that after making any required deductions and withholdings, Rockwell receives and retains (free from any liability for payment of Taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made. If Customer is exempt from paying any applicable Taxes, Customer shall promptly provide written evidence reasonably satisfactory to Rockwell of its tax-exempt status, and Rockwell will not include such Taxes in Customer’s invoices.

3.5. Suspension of Services for Non-Payment. If Customer’s account is more than thirty (30) days past due (except with respect to any disputed Fees then subject to a Billing Dispute under Section 3.6), in addition to any other rights or remedies it may have under this Services Agreement or by Law, Rockwell reserves the right to cease providing any or all Services currently being performed or to be performed for Customer, without liability to Rockwell for such suspension, and such Services shall only be resumed if Customer pays the full amount of such invoiced Fees (except for any disputed Fees then subject to a Billing Dispute under Section 3.6) are paid in full.

3.6. Billing Disputes. Any dispute involving invoiced Fees (a “Billing Dispute”) must be in writing and submitted to Rockwell within thirty (30) days of the invoice date and include a reasonably detailed statement describing the nature and amount of the disputed Fees as well as the reasonable and good faith bases for why a credit or refund is being requested (a “Billing Dispute Notice”). Customer shall cooperate with Rockwell to promptly address and attempt to resolve any Billing Dispute submitted in accordance herewith. Customer acknowledges and agrees that in the event Customer does not submit a Billing Dispute Notice in accordance with the foregoing, Customer waives all rights to dispute such invoice and all Fees set forth in such invoice will be considered correct and binding on Customer. Notwithstanding any dispute of invoiced Fees commenced in accordance with this Section 3.6, Customer shall remain obligated to pay all undisputed Fees within thirty (30) days of the invoice date.

4. Proprietary Rights; Ownership.

4.1. Rockwell Property. In performing the Services, Rockwell may use products, materials, information, ideas, concepts, know-how, techniques, tools, templates, models, software, procedures, documentation, technology, interfaces, data and/or databases, reports, processes, best practices and methodologies owned or licensed by, or developed on behalf of, Rockwell or any of its partners or suppliers (collectively, the "Rockwell Property"). Subject to the limited rights expressly granted hereunder, Rockwell and its licensors reserve and retain all right, title and interest in and to the Services and the Rockwell Property, respectively, including all patents and applications therefor, copyrights, trademarks, domain name rights, trade secret rights and all other intellectual property rights (collectively, “Intellectual Property Rights”) therein. No Rockwell Property shall be deemed to be Work Product. Rockwell may modify or improve any Rockwell Property at any time and such Rockwell Property, and Rockwell’s rights (including all Intellectual Property Rights) will include all enhancements, modifications, adaptations and/or derivative works therein and thereto (whether made by Rockwell, Customer, a third-party or jointly). Except as expressly set forth herein, Customer is not granted any right, title, or interest in or to, any Rockwell Property or any other equipment, supplies or materials owned, leased or licensed by or to Rockwell, whether related to the performance of the Services, use or operation of the Deliverables or otherwise. All Rockwell Property is deemed to be Rockwell Confidential Information.

4.2. Rockwell Ownership of Work Product. Rockwell shall own and retain all right, title, and interest (including all Intellectual Property Rights), in and to all Work Product as well as all recommendations, ideas, techniques, know-how, designs, programs, development tools, processes, integrations, enhancements, and other technical information and any modifications or adaptations to, and/or derivative works from, the foregoing, whether developed by Rockwell in the course of performing or providing any Services or co-developed by the Parties under any Work Order(s). No Work Product shall be deemed a “work made for hire”. If any Work Product is delivered to Customer in connection with providing the Services (including any Work Product included as a Deliverable or portion thereof), Rockwell hereby grants to Customer a non-exclusive, worldwide (subject to export Laws), royalty-free, fully paid-up, limited right to access and use the Work Product only on the terms and for the same period of time as Customer’s authorized use of the PLEX Subscription Services in accordance with the Subscription Agreement. Such rights shall not be sublicensable, assignable, or transferable, except in connection with Customer’s assignment of (a) these Services Terms and all Work Orders hereunder; and (b) the Subscription Agreement (including all Schedules and Order Forms, as applicable, thereunder) pursuant to Section 11.6.

4.3. PLEX Subscription Services. The Services provided under this Services Agreement are in support of Customer’s use of the PLEX Subscription Services and/or technology related to such PLEX Subscription Services purchased under a Subscription Agreement. The Subscription Agreement shall govern Customer’s use of the PLEX Subscription Services and any other services provided therein. Neither the terms of these Services Terms nor any Work Order hereunder grants Customer any license or rights to use the PLEX Subscription Services or any PLEX proprietary software platform or other PLEX services, and any such rights shall be governed by the Subscription Agreement entered into by Customer and Rockwell.

4.4. Residuals. Nothing in this Services Agreement will: (a) prohibit or limit Rockwell’s use of ideas, concepts, know-how, methods, techniques, skill, knowledge and experience that were used, developed and/or gained in connection with Rockwell’s provision of any Services under these Services Terms or any Work Order; or (b) preclude Rockwell from marketing, developing or using for any other purpose, any services or products for the benefit of Rockwell or any other party. Rockwell will continue to be free to use and exploit the Services and any Work Product to undertake the same or similar services for, and provide the same or similar products to, other customers and entities.

5. Confidentiality.

5.1. Confidential Information; Exceptions. “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. Rockwell Confidential Information includes the Rockwell Property and Work Product; Customer Confidential Information includes the Customer Data; and Confidential Information of each Party includes the terms and conditions of these Services Terms and all Work Orders (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.

5.2. Protection. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (a) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Services Agreement; and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, advisors, contractors and third parties (collectively, “Representatives”) who need access for purposes consistent with this Services Agreement and who have signed confidentiality agreements with the Receiving Party containing protections, or have ethical duties to the Receiving Party, not materially less protective of the Confidential Information than those herein. Each Party shall be and remain fully liable and responsible for its Representatives’ unauthorized disclosure or use of the other Party’s Confidential Information. Each Party may confidentially disclose the terms of this Services Agreement to any actual or potential financing source or acquirer. Notwithstanding the foregoing, Rockwell may disclose the terms of these Services Terms and any applicable Work Order to a subcontractor or third-party software provider to the extent necessary to perform Rockwell’s obligations to Customer under this Services Agreement, under terms of confidentiality materially as protective as those set forth herein.

5.3. Compelled Disclosure; Retention. 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 or limit the extent of the disclosure through a protective order or other legal measure. 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 Disclosing 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. Notwithstanding anything to the contrary contained herein, Receiving Party (a) will be entitled to retain copies of Confidential Information for internal record keeping purposes and compliance with Laws and industry standards or for the purposes of defending or maintaining litigation; and (b) will not be obligated to erase Confidential Information that is contained in its archived data storage.

5.4. Internal Record Keeping. Notwithstanding anything to the contrary contained in this Services Agreement the Receiving Party will (a) be entitled to retain copies of the Disclosing Party’s Confidential Information for internal record keeping purposes and compliance with applicable regulations and industry standards or for the purposes of defending or maintaining litigation; and (b) not be obligated to erase Confidential Information that is contained in its archived data storage.

6. Representations, Warranties, Exclusive Remedies and Disclaimers.

6.1. Service Warranty. Rockwell warrants that the Services shall be performed by qualified personnel in a professional manner, consistent with industry standards. Customer’s sole and exclusive remedy for breach of this warranty will be for us to promptly correct the defective Services at no cost or expense to Customer, which remedy shall apply and be available so long as Customer notifies Rockwell in writing of any such breach within thirty (30) business days of when such Services were provided by Rockwell. Rockwell does not otherwise warrant, expressly or implicitly, the results, performance, or quality of the Services or any Work Product provided under this Services Agreement or any Work Order and Rockwell has no obligation to provide any updates or upgrades for any Work Product.

6.2. Cooperation. Customer acknowledges that Rockwell is relying upon information (including, data, records, specifications, descriptions, and documentation) provided by Customer. As a result, the accuracy and results of the Services and provision of any Work Product are dependent upon the timeliness, accuracy, and completeness of the information furnished to Rockwell by Customer and Customer’s employees, agents, and contractors. Rockwell’s obligations to provide the Services are expressly conditioned upon Customer’s cooperation and timely: (a) performance of tasks, responsibilities and reviews under the Work Order (including any project plans developed thereunder); (b) provision of approvals and information (including data, records, specifications, descriptions, and documentation) under the Work Order; and (c) access to Customer’s personnel, resources, facilities and systems reasonably required for Rockwell to perform the Services as well as Customer meeting any responsibilities set forth in this Services Agreement (collectively, “Customer Responsibilities”). Any delays due to Customer’s failure to satisfy or comply with the Customer Responsibilities may result in delays in the provision of the Services (including the Work Product) and additional Fees. Customer shall be responsible for the content of all material, information, data, records, specifications, descriptions, and/or documentation provided by Customer to Rockwell (collectively, the “Customer Data”). Customer shall not provide to Rockwell any material, information, data, records, specifications, descriptions, and/or documentation that infringes, misappropriates, or violates the Intellectual Property Rights or privacy rights of any third party or is otherwise unlawful.

6.3. DISCLAIMERS. EXCEPT FOR ANY WARRANTIES EXPRESSLY CONTAINED IN THIS SERVICES AGREEMENT, ALL SERVICES AND WORK PRODUCT PROVIDED BY ROCKWELL HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ROCKWELL SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE CONDITIONS AND/OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ROCKWELL DOES NOT WARRANT THAT THE SERVICES, WORK PRODUCT, AND/OR ANY DELIVERABLE WILL BE ERROR-FREE OR UNINTERRUPTED. THE LIMITED WARRANTIES PROVIDED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CUSTOMER IN CONNECTION WITH THE PROVISION OF ANY SERVICES, WORK PRODUCT, AND/OR DELIVERABLE. ROCKWELL SHALL NOT BE RESPONSIBLE FOR LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND/OR ELECTRONIC COMMUNICATIONS. ALL OF ROCKWELL’S WARRANTIES ARE SOLELY TO AND FOR THE BENEFIT OF CUSTOMER AND FOR NO OTHER ENTITY OR THIRD PARTY.

7. Mutual Indemnification.

7.1. Indemnification by Rockwell. Rockwell shall defend and hold Customer, its officers, directors, employees and contractors harmless against any third party claims, demands, suits, or proceedings (“Claims”) against Customer arising out of or relating to (A) personal injury (including death) to any persons or damage to any tangible personal property (excluding any Customer Data) arising out of any negligent act, error, or omission of Rockwell and Rockwell’s employees, agents, or contractors; or (B) any Work Product infringing a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party, and shall pay all costs and damages finally awarded against Customer by a court of competent jurisdiction as a result of any such Claim and shall pay all costs and damages finally awarded against Customer by a court of competent jurisdiction as a result of any such Claim; provided, however, that Customer: (i) promptly gives written notice of the Claim to Rockwell; (ii) gives Rockwell sole control of the defense and settlement of the Claim (provided that Rockwell may not settle any Claim or enter into any order or stipulated judgment that purports to bind Customer unless it unconditionally releases Customer of all liability); and (iii) provides to Rockwell, at Rockwell’s cost, all reasonable assistance. If (a) Customer is enjoined from using the Work Product; or (b) the Work Product becomes, or Rockwell believes the Work Product will likely become, the subject of an infringement Claim, Rockwell shall have the right, in its sole discretion, to (i) obtain for Customer the right to continue use of the affected Work Product; or (ii) replace or modify the affected Work Product so that it is no longer infringing.

If, in Rockwell’s sole reasonable discretion, neither of the foregoing options are reasonably available to or commercially feasible for Rockwell, Rockwell will request that Customer return and no longer use the affected Work Product and, upon Customer’s compliance with such request, Rockwell’s sole liability will be to refund the Fees paid by Customer for the affected Services and/or Work Product. Rockwell’s foregoing indemnification obligation shall not apply to any Claim based on or caused by: (a) any design specifications, requirements, documentation, materials, instructions, and/or directions prepared by Customer and/or provided to Rockwell under these Services Terms or any Work Order; (b) any Work Product or Services being modified by any party other than Rockwell, but solely to the extent the alleged infringement is caused by such modification; (c) any Work Product or Services being combined with other non-Rockwell products, services, and/or processes not authorized by Rockwell in writing, but solely to the extent the alleged infringement is caused by such combination; (d) any unauthorized use of any of any Work Product or Services; (e) any third party deliverables or components not provided by Rockwell that are contained within any Work Product or Services; or (f) Rockwell’s use of any Customer Data in accordance with this Services Agreement. THIS SECTION 7.1 SETS FORTH ROCKWELL'S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

7.2. Indemnification by Customer. Customer shall defend and hold Rockwell, its officers, directors, employees and contractors harmless from any Claims against Rockwell alleging that any Customer Data infringes the rights of, or has caused harm to, a third party or violates any Law, and shall pay all costs and damages finally awarded against Rockwell by a court of competent jurisdiction as a result of any such Claim; provided, however, that Rockwell: (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim or enter into any order or stipulated judgment that purports to bind Rockwell unless it unconditionally releases Rockwell of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance.

8. Limitation of Liability.

8.1. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT WITH RESPECT TO: (a) A PARTY’S INDEMNIFICATION OBLIGATIONS; (b) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; AND (c) CUSTOMER’S PAYMENT OBLIGATIONS UNDER THIS SERVICES AGREEMENT, IN NO EVENT SHALL (i) EITHER PARTY OR ITS SUPPLIERS, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONTRACTORS HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED, OR FOR ANY LOSS OF BUSINESS, REVENUE, ANTICIPATED SAVINGS, PROFITS, USE, AND/OR LOSS OR CORRUPTION OF ANY DATA AND/OR COST OF DATA RECONSTRUCTION OR PROCUREMENT OF SUBSTITUTE OR REPLACEMENT GOODS, SERVICES, INVENTORY OR EQUIPMENT, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR UNDER ANY OTHER THEORY OF LIABILITY, FOR ANY CLAIM ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICES AGREEMENT, EVEN IF SUCH PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES; AND (ii) EITHER PARTY’S ENTIRE AND MAXIMUM LIABILITY FOR ALL CLAIMS IN ANY MANNER RELATED TO THESE SERVICES TERMS AND/OR THE APPLICABLE WORK ORDER, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE, THE TOTAL FEES ACTUALLY PAID TO ROCKWELL BY CUSTOMER UNDER THE WORK ORDER WHICH GAVE RISE TO THE CLAIM FOR DAMAGES. THE FOREGOING LIMITATION OF LIABILITY IS CUMULATIVE FOR ALL CLAIMS IN ANY MATTER RELATED TO THIS SERVICES AGREEMENT AND IS NOT PER INCIDENT.

8.2. Commencement of Actions; Mitigation of Damages. No Party may commence any action under these Services Terms or a Work Order more than one (1) year after the occurrence of the breach or event giving rise to the claim for damages and/or indemnification. The claiming Party shall use commercially reasonable efforts to mitigate and avoid any damages.

9. Term; Termination.

9.1. Work Orders. Unless otherwise provided in a Work Order, the term of each Work Order shall expire on the earlier of (a) the date of expiration of such Work Order or cessation of such Services, as specified therein; or (b) Rockwell’s completion of the Services described therein (the “Term”).

9.2. Applicability of these Services Terms. The term of these Services Terms commences as of the date these Services Terms are accepted by Customer in accordance with the terms herein and shall remain in effect and apply to each Work Order executed by the Parties until all Work Orders have expired or been terminated hereunder.

9.3. Termination. (a) Either Party may terminate a Work Order or, at the election of the terminating Party, this Services Agreement (i) upon thirty (30) days prior written notice to the other Party of a material breach by the other Party if such breach remains uncured at the expiration of such notice period; or (ii) immediately in the event the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In the event this Services Agreement is terminated, these Services Terms and all Work Orders are simultaneously terminated. Notwithstanding any terms to the contrary in this Services Agreement, if any amounts owed by Customer (except for any Disputed Fees then in dispute under Section 3.6) are not fully-paid when due in accordance with Section 3 herein, Customer shall be in material breach of this Services Agreement and, in addition to its other rights and remedies at law or in equity, Rockwell may terminate this Services Agreement and cease providing all Services, effective immediately upon delivery of written notice to Customer. (b) If Customer terminates this Services Agreement or any Work Order prior to the expiration of the end of the Term for Rockwell’s uncured breach, Customer shall be entitled to a refund of all pre-paid Fees for the Services paid for but not provided by Rockwell beyond the effective date of termination. If, prior to the expiration of the Term, (i) Customer terminates this Services Agreement or any Work Order before the completion of all Services purchased hereunder and such termination is not due to Rockwell’s uncured breach; or (ii) Rockwell terminates this Services Agreement or any Work Order due to Customer’s uncured breach (collectively, a “Customer Early Termination”) and Customer has not already paid in advance the full amount of all Fees due under each Work Order for the Services purchased in accordance with the terms herein, Customer shall pay Rockwell an early termination charge equal to all Fees, including all applicable Taxes, set forth in each Work Order which would otherwise be due through the end of the entire Term of such Work Order (the “Early Termination Fee”). The Parties agree that the precise damages resulting from a Customer Early Termination are difficult to ascertain and the Early Termination Fee is a reasonable estimate of anticipated actual damages and not a penalty. Customer agrees and acknowledges that the Early Termination Fee shall apply even if Customer terminates this Services Agreement or any Work Order prior to Rockwell commencing performance of any Services under this Services Agreement. The Early Termination Fee shall be due and payable within ten (10) days of the effective date of termination and any prepaid Fees will be applied towards the amount of the Early Termination Fee.

10. Modifications and Amendments to Services Terms.

10.1. Modifications and Amendments. Rockwell may, at any time and in its sole discretion, amend these Services Terms (posted at https://www.plex.com/professional-services-terms), if any such amendment(s) does not adversely and materially affect the level or quality of Services provided by Rockwell to Customer or change the rates quoted in any Work Order. The revised Services Terms will become effective as to Customer on the earlier of (a) the first day after Customer and Rockwell sign a new Work Order that incorporates the revised version of the Services Terms by reference; or (b) thirty (30) days following Rockwell’s written notice to Customer that a revised version of the Services Terms has been posted at https://www.plex.com/professional-services-terms.

10.2. Customer’s Rights. If Customer’s compliance with the revised or amended version of the Services Terms would materially or adversely affect Customer’s use of the Services or any Work Product provided under a Work Order and Customer gives written notice of its objection to the revised Services Terms no later than ten (10) business days following the date that the revised Services Terms would otherwise have become effective as to Customer, Rockwell will not enforce the revision(s) to such Services Terms as to Customer until thirty (30) days following the date the revision(s) would otherwise have become effective as to Customer and Customer will continue to be subject to the prior version of the Services Terms. During the thirty (30) day period, Customer may elect to terminate the Work Order on these grounds by giving written notice to Rockwell, which must be received by Rockwell during such thirty (30) day period or such termination right shall be deemed to be waived by Customer. Rockwell will not charge Customer an early termination fee for a termination on these grounds. If Customer does not elect to terminate the Work Order during the thirty (30) day period, then the revised version of the Services Terms will become effective as to Customer and apply to the Work Order (and all other Work Orders) as of the end of the thirty (30) day period. If Customer elects to terminate the Work Order in accordance with the terms of this Section 10.2, Rockwell, in its sole discretion, may elect to waive application of the revised Services Terms as to Customer and continue to apply, for the remainder of the term of the Work Order, the version of the Services Terms that was in effect prior to the date that the revised version of the Services Terms was posted at https://www.plex.com/professional-services-terms.

11. General Provisions.

11.1. Export Compliance. The Services and other technology Rockwell makes available, and derivatives thereof, may be subject to export laws and regulations of the United States and other jurisdictions. Each Party represents that it is not named on any U.S. government denied-party list. Customer shall not permit Users to access or use any of the Services in a U.S. embargoed country or in violation of any U.S. export law or regulation.

11.2. Employee Solicitation. While this Services Agreement is in effect and for one (1) year thereafter, Customer shall not, directly or indirectly, solicit for employment or engage (whether as an employee, independent contractor or consultant) any Rockwell employee or subcontractor who was involved in providing the Services. An employee’s or subcontractor’s response to a general, non-targeted advertisement for employment shall not be deemed solicitation for the purposes of this Services Agreement.

11.3. Survival. All provisions survive termination or expiration of this Services Agreement except those requiring performance only during the term of this Services Agreement and/or a Work Order, as applicable.

11.4. No Third-Party Beneficiaries. This Services Agreement does not create any right enforceable by any person or entity that is not a party hereto.

11.5. Entire Agreement; Order of Precedence. This Services Agreement is the entire agreement between Customer and Rockwell regarding the Services and supersedes and merges all prior and contemporaneous, written or oral, agreements, understandings, proposals, marketing materials and representations concerning its subject matter and the Services and there are no representations, understandings or agreements that are not fully expressed. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Services Agreement will be effective unless set forth in writing and signed by the Party against whom the modification, amendment or waiver is to be asserted. The Parties agree that any term or condition stated in Customer’s purchase order or in any of Customer’s other order documentation (excluding Work Order) is void. Headings contained in this Services Agreement are inserted for convenience of reference only and shall not in any way define or affect the meaning or interpretation of any provision of this Services Agreement. Terms for which meanings are defined in this Services Agreement shall apply equally to the singular and plural forms of the terms defined. Unless otherwise indicated, the word “including” shall mean “including, without limitation” or words of similar effect. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (a) these Services Terms; and (b) the applicable Work Order (unless and to the extent expressly stated therein that a specified term therein shall take priority over an analogous or conflicting term in these Services Terms).

11.6. 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 this Services Agreement in its entirety (together with all Work Orders), 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 provided that the assignee agrees in writing to be bound by all the terms of this Services Agreement (including all Work Orders) and, in the case of an assignment by Customer, all past due Fees (except for any disputed Fees then subject to a Billing Dispute under Section 3.6) are paid in full. Notwithstanding the foregoing, if a Party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other Party, then such other Party may terminate this Services Agreement upon written notice. In the event of such a termination, Rockwell will refund to Customer any prepaid Fees for the Services allocable to the remainder of the Term for the period after the effective date of such termination. Subject to the foregoing, this Services Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.

11.7. Relationship of the Parties. The Parties are independent contractors. This Services Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. There are no third party beneficiaries under this Services Agreement.

11.8. Force Majeure. Neither Party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to circumstances beyond such Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such Party’s employees or contractors), service disruptions involving hardware, software or power systems not within such Party’s possession or reasonable control, and denial of service attacks.

11.9. Waiver. No failure or delay by either Party in exercising any right under this Services Agreement will constitute a waiver of that right or any other right. Any waiver of any right or remedy under this Services Agreement must be in writing and signed by each Party. A waiver on one occasion shall not be construed as a waiver of any right or remedy on any future occasion. Except as otherwise expressly stated in this Services Agreement, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.

11.10. Governing Law. This Agreement shall be governed by the laws of the State of Wisconsin, without regard to any conflict of laws provisions. The United Nations Convention on the International Sale of Goods will not apply. You agree to bring any action in connection with this Agreement or the Software exclusively in the state or federal courts of Wisconsin, and You further agree to the jurisdiction of the state and federal courts of Wisconsin for any action that Rockwell Automation brings against You.  

11.11. Notice. Unless otherwise provided in this Services Agreement, all notices (except for routine business communications, e.g., scheduling of meetings or calls; requests for information; status reports, etc.) shall be in writing and sent via certified or registered mail, return receipt requested, or by overnight courier service. Notices to Rockwell Automation must be sent to the attention of Plex Deal Desk at Rockwell Automation, Inc., 900 Tower Drive, Suite 1500, Troy, MI 48098 with a copy sent via email to PlexContractsAdministration@plex.com. Except as otherwise specified in a Work Order, notices to Customer shall be addressed to Customer’s signatory to the Work Order and sent to Customer’s principal place of business.

11.12. Severability. If any provision of Services Agreement is held by a court of competent jurisdiction to be contrary to Law, the provision will be deemed null and void, and the remaining provisions of this Services Agreement will remain in effect.

11.13. Subcontractors. Rockwell may use the services of subcontractors for the performance or provision of any Services or Work Product under any Work Order, provided that Rockwell remains responsible for the (a) compliance by any such subcontractor with the terms of this Services Agreement; and (b) overall performance of the Services.

11.14. Counterparts; Electronic Signatures. Any Work Order may be executed and delivered in counterparts by facsimile, emailed PDF or electronic signature through DocuSign or other service provider designated by Rockwell, each of which will be deemed an original and all of which together will constitute one and the same instrument and, notwithstanding the date of execution, shall be deemed to be effective as of the Effective Date (unless such document expressly provides otherwise).