User Terms and Agreement

THESE  TERMS  and  AGREEMENT  (this  “Agreement”)  AFFECT  YOUR  LEGAL  RIGHTS AND RESPONSIBILITIES AND CREATE A LEGALLY BINDING CONTRACT BETWEEN YOUAND THEO TECHNOLOGY HOLDINGS LLC (“Provider”) and its subsidiaries. Please read these terms and agreement carefully. IF YOU DO NOT AGREE WITH THIS AGREEMENT YOU   SHOULD   NOT   USE   THE   SITE   OR THEO   SERVICE. USE   OF   THE   SITE CONSTITUTES ACCEPTANCE AND AGREEMENT. We recommend that You print and keep a copy of the agreement (and any other documents referred to in the agreement) for Your reference. The Agreement will be maintied by Provider at [www.theobuild.com/terms] and the Agreement may be amended from time tot time by Porvider by updating the Agreement, posting it at this site, and  notifying  the  User  by  email.  Continued  use  following  receipt  of  such  notice  by  email constitutes User’s acceptance and agreement to the amended Agreement. This Agreement was last updated on January 14, 2021. It is effective between Provider and Users as of the date Users accept this Agreement (the “Effective Date”).

1. Definitions.
a)“Account”means a license entitling the User to access the Provider’s Theo Service.

b)“Aggregated Statistics”means  data  and  information  related  to User’s use  of  the Theo Service that  is  used  by  Provider  in  an  aggregate  and  anonymized  manner,  including  to compile statistical and performance information related to the provision and operation of the Theo Service.

c)“Authorized User”means User’s employees, consultants, contractors, and agents (i) who are authorized by User to access and use the Theo Service under the rights granted to User pursuant to this Agreement

d)“Documentation”means Provider’s user manuals, handbooks, and guides relating to the Theo Service provided by Provider to User either electronically or in hardcopy form.

e)“Provider IP”means the Theo Service, the Documentation, and any and all intellectual property provided to User or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider’s monitoring of Your access to or use of the Theo Service, but does not include UserData.

f)“Theo Service”means the  website  accessible  at https://theobuild.comand  all  of  the features and services that are available to users.

g)“Third-Party Products”means  any  third-party  products  provided  with  or  incorporated into the Theo Service.

h)“User”or “Users”means anyone that accesses, uses, subscribes to and/or participates in the Theo Service in any manner. 2

i)“User Data”means the information, data, and other content contained in Theo Service, in any  form  or  medium,  that  is  entered  and/or  uploaded  by  Users  into  the  Theo  Service, including but not limited to text, documents and correspondence and Aggregated Statistics.  

j)“We”, “Us”or “Our”, as applicable, means Theo Technology Holdings LLC.

k)“You”or “Your”, as applicable, means the User entering into an agreement for access to the  Theo  Service  by  clicking ‘Sign  Up’,  and  if  such  registration  is  made  on  behalf  of  a business, means that business.


2. Access and Use. a)Registration.By  clicking “Sign  Up”:  

(a)You acknowledge You are  registering  as  a  User with the Theo Service and agree to be bound by all terms and conditions of this Agreement;

(b)You consent to receiving certain electronic communications from Us regarding account information and services;

(c)You are warranting and representing that: (i) all information You submit into Theo Service is truthful and accurate and You will maintain the accuracy of such information;
(ii)You have the necessary licenses, rights, consents, and permissions to post, submit and publish User Data; and

(iii) if You use or access the Theo Service on behalf of a business, thatYou have the authority to bind that business and Your acceptance of the Agreement will be deemed an acceptance by that business, if User does not have such  authority,  the  business  shall  be  bound  regardless. These  representations  and warranties will survive any termination or expiration of this Agreement or any deactivation of the Theo Service or Your access to the Theo Service.

b)Provision of Access. Registration will grant You access to the Theo Service and support from client service and technical support (if required). Subject to terms and conditions of thisAgreement, We  hereby  grant You a  non-exclusive,  non-transferable  (except  in compliance with Section 11

(e)right to access and use the Theo Service during the Term. Such use is limited to Your internal use. c)Documentation License. Subject to the terms and conditions contained in this Agreement, We hereby grant toYou a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 11(e)license to use the Documentation during the Term solely for Your internal business purposes in connection with its use of the Theo Service.

d)Use Restrictions.You shall not use the Theo Service for any purposes beyond the scope of the access granted in this Agreement.You shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Theo Serviceor Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise commercially exploit or make available the Theo Service or Documentationto any third party, except as contemplated by this agreement;(iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Theo Service, in whole or in part; (iv) remove any proprietary notices from the Theo Serviceor Documentation; or  (v)  use  the Theo  Serviceor  Documentation  in  any  manner  or  for  any  purpose  that 3infringes,  misappropriates,  or  otherwise  violates  any  intellectual  property  right  or  other rightsof any person, or that violates any applicable law.e)Reservation  of  Rights. Wereserve  all  rights  not  expressly  granted  toYou in  this Agreement.  Except  for  the  limited  rights  and  licenses  expressly  granted  under  this Agreement,  nothing  in  this  Agreement  grants,  by  implication,  waiver,  estoppel,  or otherwise, toYou or any third party any intellectual property rights or other right, title, orinterest in or to the Provider IP.f)Suspension.Nonwithstanding  anything  to  the  contrary  in  this  Agreement, Wemay temporarily suspend Yourand any Authorized User’s access to any portion or all of the Theo Serviceif: (i) Wereasonably determine that

(A) there is a threat or attack on any of the Provider IP;
(B) Your or any Authorized User’s use of the Provider IPor any Third-Party Productsdisrupts or poses a security risk to the Provider IP or to any other User or vender  or  Provider;  
(C)  subject  to  applicable  law,You haveceased  to  continue Yourbusiness in the ordinary course, made an assignment for the benefit of creditors or similar disposition  of Your assets,  or  become  the  subject  of  any  bankruptcy,  reorganization, liquidation,  dissolution,  or  similar  proceeding;  (ii)  any  vendor  of ourshas  suspended  or terminated Ouraccess  to  or  use  of  any  third-party Theo  Serviceor  products  required  to enable Yourto access the Theo Service; or (iii) in accordance with Section 2(f)(any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Weshall use commercially  reasonable  efforts  to  provide  written  notice  of  any  Service  Suspension  toYou and to provide updates regarding resumption of access to the Theo Servicefollowing any Service Suspension. Weshall use commercially reasonable efforts to resume providing access  to  the Theo  Serviceas  soon  as  reasonably  possible  after  the  event  giving  rise  to Theo  ServiceSuspension  is  cured. Wewill  have  no  liability  for  any  damage,  liabilities, losses (including any loss of data or profits), or any other consequences thatYou or any Authorized User may incur as a result of a Service Suspension. g)Deactivation.IfYou are not satisfied with the Theo Service,You canrequest to deactivate Youraccess  to  the Theo  Serviceby  emailing jammil@theobuild.com.You may  remain visible  to  Users  on Theo  Serviceafter  being  deactivatedif,  but  not  limited  to,You are attached to an active project. As described in Section 10(c), upon deactivation, User will still be responsible for any outstanding fees owed to Us.h)Aggregated  Statistics.  Notwithstanding  anything  to  the  contrary  in  this  Agreement, Wemay monitor Youruse of the Theo Serviceand collect and compile Aggregated Statistics. As between Provider and User, all right, title, and interest in Aggregated Statistics, and all intellectual  property  rights  therein,  belong  to  and  are  retained  solely  by  Provider.You acknowledge that Wemay compile Aggregated Statistics based on UserData input into the Theo Service.You agrees that Wemay (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the  manner  permitted  under  applicable  law;  provided  that  such  Aggregated  Statistics  do not identifyYou or YourConfidential Information.

3. Customer Responsibilities.4a)General.You areresponsible and liable for all uses of the Theo Serviceand Documentation resulting from access provided to you, directly or indirectly, whether such access or use is permitted  by  or  in  violation  of  this  Agreement.  Without  limiting  the  generality  of  the foregoing,You areresponsible 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 Userwill  be  deemed  a  breach  of  this  Agreement  by User. Usershall  use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Theo Service, and shall cause Authorized Users to comply with such provisions.b)Third-Party Products. Wemay from time to time make Third-Party Products available to you. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. IfYou do not agree to abide by the applicable terms for any such Third-Party Products, thenYou should not install or use such Third-Party Products.We are not liable for Your improper use of any Third-Party Products.User agrees to indemnify Us against any action arising from the violation of this Section.

4. Fees.The use of the Theo Service may be provided for a Fee. The Fee and payment terms for the Theo Service including all applicable taxes (“Fee”) are set forth in the Billing Notice and will be issued before the Billing Date. Except otherwise specified herein (i) fees are based on services purchased and not on actual usage, and (ii) the payment obligations are non-cancelable and fees paid may be non-refundable.You must notify Us of any fee dispute within 15 days of the invoice date, and once resolved,You agree to pay those fees within 15 days. We reserve the right to update the price for the Theo Service at any time, with prior written notice, price changes will be effective as of Your next billing cycle. If failure to pay Fees continues for more than 15 days, We reserve the  right to,  in  addition  to  any  other  remedies  available  at  law  or  in  accordance  with  this Agreement, suspend Your and Your Authorized Users’access to any portion or all of the Theo Service until such amounts are paid in full.

5. Confidential InformationWe agreethat We will hold User Data that Wereceive fromYou via the  Theo  Service  and  that  is  in  compliance  with Your  obligations  under  this  Agreement in confidence  and willnot knowingly distribute  to  third  parties  without  authorization.You acknowledge that the Aggregated Statistics derived from User Data is not confidential information.

6. Intellectual Property Ownership; Feedback.a)Provider IP.You acknowledge that, as between User and Provider, We own all right, title, and interest, including all intellectual property rights, in and to the Provider IP,and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products. b)UserData. Weacknowledge that, as between Provider and User,You own all right, title, and interest, including all intellectual property rights, in and to the UserData.You hereby grant to Usa non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the UserData and perform all acts with respect to the UserData as  may  be  necessary  for Usto  provide  the Theo  Serviceto you,  and  a  non-exclusive, 5perpetual,  irrevocable,  royalty-free,  worldwide  license  to  reproduce,  distribute,  modify, and otherwise use and display UserData incorporated within the Aggregated Statistics.c)Feedback.  IfYou or  any  of Youremployees  or  contractors  sends  or  transmits  any communications or materials to Usby mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality  relating  thereto,  or  any  comments,  questions,  suggestions,  or  the  like (“Feedback”), Wearefree to use such Feedback irrespective of any other obligation or limitation betweeWthe Parties governing such Feedback.You hereby assignto Uson Yourbehalf,  and  on  behalf  of Your employees,  contractors  and/or  agents,  all  right,  title,  and interest in, and Wearefree to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in  the  Feedback,  for  any  purpose  whatsoever,  although We are not  required  to  use  any Feedback.7. Warranty  Disclaimer.  THE  PROVIDER  IP  IS  PROVIDED “AS  IS”, “WHERE  IS”, “WITH ALL FAULTS”AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS,   IMPLIED,   STATUTORY,   OR   OTHERWISE.   PROVIDER   SPECIFICALLY DISCLAIMS  ALL  IMPLIED  WARRANTIES  OF MERCHANTABILITY,  FITNESS  FOR  A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING  FROM  COURSE  OF  DEALING,  USAGE,  OR  TRADE  PRACTICE.  PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY PRODUCTS OR  RESULTS  OF  THE  USE THEREOF,  WILL  MEET  CUSTOMER’S  OR  ANY  OTHER PERSON’S  REQUIREMENTS,  OPERATE  WITHOUT  INTERRUPTION,  ACHIEVE  ANY INTENDED  RESULT,  BE  COMPATIBLE  OR  WORK  WITH  ANY  SOFTWARE,  SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

8. Indemnification. a)Provider Indemnification. a.Weshall indemnify, defend, and hold harmlessUsersfrom and against any and all losses, damages, liabilities, costs (including reasonable attorneys’fees) (“Losses”) incurred by Usersresulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”)  that  the Theo  Serviceinfringes  or  misappropriates  such third party’s US intellectual property rights/US patents, copyrights, or trade secrets, provided thatYou promptly notify Us in writing of the claim, cooperate with us, and allowUs sole authority to control the defense and settlement of such claim. b.If such a claim is made or appears possible,You agree to permit us, at Oursole discretion, to (A) modify or replace the Theo Service, or component or part thereof, to make it non-infringing, or (B) obtain the right forYou to continue use. If Wedetermine that neither alternative is reasonably available, Wemay terminate this Agreement,  in  its  entirety  or  with  respectto  the  affected  component  or  part, effective immediately on written notice to Users. 6c.This Section 8 will not apply to the extent that the alleged infringement arises from: (A)  use  of  the Theo  Servicein  combination  with  data,  software,  hardware, equipment, or technology not provided by Usor authorized by Usin writing; (B) modifications  to  the Theo  Servicenot  made  by us;  (C) UserData;  or  (D)  Third-Party Products. b)UserIndemnification.You shall indemnify, hold harmless, and, at Ouroption, defend Usfrom and against any Losses resulting from any Third-Party Claim that the UserData, or any use of the UserData in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rightsand any Third-Party Claims based on Youror any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Theo Servicein a manner not authorized by this Agreement; or (iii) modifications to the Theo Servicenot made by us, provided thatYou may not settle any Third-Party Claim against Usunless Weconsent to such settlement, and further provided that Wewill have the right, at Ouroption, to defend ourselfagainst any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice. c)Sole  Remedy.  THIS SECTION 8SETS  FORTH USER’SSOLE REMEDIESAND PROVIDER’S   SOLE   LIABILITY   AND   OBLIGATION   FOR   ANY   ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE THEO SERVICEINFRINGES, MISAPPROPRIATES,    OR    OTHERWISE    VIOLATESANY    INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL PROVIDER’S LIABILITY UNDER THIS SECTION 8EXCEEDTHE TOTAL VALUE OF AMOUNTS PAID BYYou UNDER THIS AGREEMENT.

9. Limitations  of  Liability.  IN  NO  EVENT  WILL WEBE  LIABLE  UNDER  OR  IN CONNECTION   WITH   THIS   AGREEMENT   UNDER   ANY   LEGAL   OR   EQUITABLE THEORY,  INCLUDING  BREACH  OF  CONTRACT,  TORT  (INCLUDING  NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT,   EXEMPLARY,   SPECIAL,   ENHANCED,   OR   PUNITIVE   DAMAGES;   (b) INCREASED  COSTS,  DIMINUTION  IN  VALUE  OR  LOST  BUSINESS,  PRODUCTION, REVENUES, OR PROFITS, OR LOSS OR DAMAGES BASED UPON ANY MULTIPLE; (c) LOSS   OF   GOODWILL   OR   REPUTATION;   (d)   USE,   INABILITY   TO   USE,   LOSS, INTERRUPTION,  DELAY,  OR  RECOVERY  OF  ANY  DATA,  OR  BREACH  OF  DATA  OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR THEO SERVICE, IN EACH   CASE   REGARDLESS   OF   WHETHER   PROVIDER   WAS   ADVISED   OF   THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE   FORESEEABLE.   IN   NO   EVENT   WILL   PROVIDER’S   AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR  EQUITABLE  THEORY,  INCLUDING  BREACH  OF  CONTRACT,  TORT  (INCLUDING NEGLIGENCE),   STRICT   LIABILITY,   AND   OTHERWISE   EXCEED   THE   TOTAL AMOUNTS PAID  AND  AMOUNTS  ACCRUED  BUT  NOT  YET  PAID  TO  PROVIDER UNDER  THIS  AGREEMENT  IN  THE ONE-YEAR PERIOD  PRECEDING  THE  EVENT GIVING RISE TO THE CLAIM OR $1,000,WHICHEVER IS LESS.

10. Term and Termination. 7
a)Term. This Agreement, as amended from time to time in accordance with the preamble to this Agreement will begin on the Effective Date and will automatically renew for additional one-year  periods  at  the  end  of  the  current  term  (each  a “Renewal  Period”)  until deactivation in accordance with Agreement Section 2(g)or termination in accordance with this Agreement Section 10(b).

b)Termination. We may suspend Your access to the Theo Service without notice or liability if it is determined, in Our sole discretion, thatYou are acting or have acted in a way that is not in compliance with this Agreement, or which negatively reflects on or affects us, Our services, Our  prospects, Our  Users  or Our  affiliates  in  any  way.  We  may,  in Our  sole discretion and without prior notice, terminate Your access to the Theo Service in any other circumstances  where We  determines  this  to  be  appropriate  and/or  necessary.  We  may terminate Your  access  to  Theo  Service  with  prior  notice  if  there  is  no  activity  in  a continuous period of twelve (12) months from the last login date. We may also suspend or terminate Your access to Theo Service ifYou do not pay undisputed fees.  

c)Effect  of  Termination.  Upon deactivation, expiration  or  earlier  termination  of  this Agreement,You shall immediately discontinue use of the Provider IP and, without limiting Your  obligations  under Section 5,You shall  delete,  destroy,  or  return  all  copies  of  the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. No deactivation, expiration or termination will affect Customer’s obligation to pay  all  Fees  that  may  have  become  due  before  such  expiration  or  termination  or  entitle Customer to any refund) Survival. This Section 10 and Sections 1, 2, 4, 5, 6, 7, 8, 9, and 11 survive any termination or  expiration  of  this  Agreement.  No  other  provisions  of  this  Agreement  survive  the expiration or earlier termination of this Agreement.

11. Miscellaneous.
a)Entire  Agreement. This  Agreement  constitutes  the  entire  agreement  between  the  parties relating to the subject matter hereof and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to said subject matter.

b)Availability. We will make commercially reasonable efforts to ensure that the Theo Service will  be  available  24  hours  a  day  and  7  days  a  week,  except  for  (i)  down-time  for maintenance,  advance  notice  will  be  provided  if  the  duration is  expected  to exceed  30 minutes  during  business  hoursin  Dallas,  Texasand  (ii)  any  unvailiability  caused  by circumstances beyondOur reasonablecontrol, including, for example, an act of God, act of  government,  flood,  fire,  earthquake,  civil  unrest,  act  of  terror,  strike  or  other  labor problem  (otherthan  one  involving  Our  employees),  Internet  service  provider  failure  or delay. The foregoing does not constitute a warranty or guaranty of service level availability.

c)Severability. If  any  provision  of  this  Agreement  shall  be  held  void,  voidable,  invalid  or inoperative, no other provision hereof shall be affected as a result thereof, and, accordingly, 8the remaining provisions of this Agreement shall remain in full force and effect as though such void, voidable, invalid or inoperative provision has not been contained herein.
d)Governing  Law;  Submission  to  Jurisdiction. Any  controversy  or  claim  arising  out  of  or relating to this Agreement, or the breach therof, shall be determined by final and binding arbitrion  admintistered  by  the  American  Arbitration  Association  under  its  Commercial Arbitration Rules and Mediation Procedures. If the controversy or claim is taken to court for emergency relief or to enforce the arbitration award, this Agreement is governed by and construed in accordance with the internal laws ofthe State of Texaswithout giving effect to  any  choice  or  conflict  of  law  provision  or  rule  that  would  require  or  permit  the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder or  arbitration  award will be  instituted exclusively  in  the  federal  courts  of  the United States or the courts of the State of Texas in each case located in the city of Dallasand County of Dallas, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.Each party waives its right to a jury trial.The prevailing party of any controversy or claim shall receive costs for attorneys fees. e)Assignment.You may not assign any of Your rights or delegate any of Your obligations hereunder,  in  each  case  whether  voluntarily,  involuntarily,  by  operation  of  law  or otherwise, without the prior written consent of us. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding  upon  and  inures  to  the  benefit  of  the  Parties  and  their  respective  permitted successors and assigns. We may assign this Agreement in its entirety, without Your consent to   an   affiliate   or otherwise in   connection   with   a   merger,   acquisition,   corporate reorganization, or sale of assets. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. f)Export  Regulation.You shall  comply  with  all  applicable  federal  laws,  regulations,  and rules,  and  complete  all  required  undertakings  (including  obtaining  any  necessary  export license or other governmental approval), that prohibit or restrict the export or re-export of the Theo Serviceor any Customer Data outside the US.

g)Equitable Relief.You acknowledge and agrees that a breach or threatened breach byYou of any of Your obligations under Section 0orSection 5, would cause the Us irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the  event  of  such  breach  or  threatened  breach, We will  be  entitled  to  equitable  relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

h)Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.9I)Contact Us.If You have any questions concerning this Agreement, please contact Us by one of the following:
(i) Phone: 1-925-999-5895;
(ii) Email: jammil@theobuild.com
(iii) Mail: C/O Theo Technology Holdings LLC, 8350 N Central Expy Suite 1900, Dallas, TX 75206.