Terms & Conditions

Terms and Conditions – CamTechnologies, LLC (CamTech)

Below are various Terms and Conditions CamTech is bound by from various vendors that we utilize to

perform work for our clients. Please review these thoroughly. These terms change from time to time as

well as the vendors that we utilize to perform services. Please check this web site often for changes –

www.camtechmsp.com/terms-conditions/

CamTechnologies, LLC. (CamTech)

Client Responsibility

Client shall cooperate with CamTech in any way necessary for CamTech to carry out the services

mentioned herein, including, but not limited to, providing access to client’s network and facilities.

Restrictions to Hire

Client agrees not to solicit, with the intent to hire, any CamTech staff or sub-contractors for employment

at any time and for a period of twelve (12) months following last work performed for client. In the event

client hires any CamTech employee or sub-contractor as a result of clients’s direct solicitation thereof,

client agrees to reimburse CamTech an amount equivalent to six (6) months of the employee/subcontractor’s

compensation for business interruption. Notwithstanding anything to the contrary, nothing

herein shall prohibit client from hiring any CamTech staff member or sub-contractor who applies to client

or otherwise initiates employment with client.

Return of Confidential Information

All Confidential Information shall remain the property of the disclosing party. Upon the disclosing party’s

request, or upon termination or expiration of this Agreement, the receiving party shall, at the disclosing

party’s option and to the extent permitted by applicable law or court order promptly return to the

disclosing party or destroy the Confidential Information of the disclosing party and upon request certify in

writing that all such Confidential has been destroyed; any Confidential Information not destroyed or

returned shall remain subject to the confidentiality restrictions set forth herein.

Confidential Information. “Confidential Information” means all information (regardless of whether in oral

or in a tangible medium and regardless of whether marked as confidential) of the disclosing party or any of

its affiliates (collectively, “Discloser”) that is not readily available to the public, including, but not limited

to: strategic plans; organization charts; acquisition and divestiture information; financial reports and related

information; research and development information; information regarding proprietary processes,

inventions and prototypes; product specifications; cost and price planning data; customer and vendor

databases; and clinical or other scientific tests results. CamTech may also disclose confidential information

of a third party, and such confidential information will be included within the scope of CanTech’s

Confidential Information under this Agreement (and must be treated accordingly by Company).

Irreparable Harm

Both parties acknowledge that any use or disclosure of the other party’s Confidential Information in a

manner inconsistent with the provisions of this Agreement may cause the non-disclosing party

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irreparable damage for which remedies other than injunctive relief may be inadequate, and both parties

agree that the non-disclosing party may request injunctive or other equitable relief seeking to restrain

such use or disclosure without the necessity of proving actual harm or posting bond.

Independent Contractor

CamTech is an independent contractor. Neither CamTech nor Client are, or shall be deemed for any

purpose to be, employees or agents of the other and neither party shall have the power or authority to bind

the other party to any contract or obligation. Also, CamTech is responsible for providing, at CamTech’s

expense, unemployment insurance, medical insurance, workers comp, and/or worker’s compensation

insurance for CamTech’s employees and agents in appropriate amounts taking into account all potential

risks and exposures.

Dispute Resolution

Both parties agree that any controversy or claim arising out of or relating to this Agreement or to its

breach shall be settled by submitting the controversy or claim to the Tulsa County District Court to be

heard by a judge. In any dispute arising out of this Agreement, the prevailing party shall be entitled to

receive its attorney’s fees and costs incurred in connection with any action or proceeding hereunder.

Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the State of

Oklahoma, without regard to conflict of laws principles. Client hereby irrevocably consents to the

jurisdiction of Tulsa County of the State of Oklahoma.

Force Majeure

CamTech shall not be responsible for its failure to perform under this Agreement when its failure results

from any of the following causes: acts of God, pandemics, terrorist or other public enemies, civil or

military authority, insurrection or riot, fire, flood, explosion, earthquake or serious accident, failure of

hardware owned by client, or any cause beyond its reasonable control.

Private Cloud Host Management

Private Cloud host servers provided by CamTech are managed to the extent detailed below. Every Private

Cloud host server includes basic managed services including initial operating system / hypervisor

installation, hardware maintenance when required, basic monitoring, basic troubleshooting support for the

operating system / hypervisor, patch management for the host (pursuant to an established maintenance

schedule), and remote reboot services. a. Operating system / hypervisor setup and testing – CamTech will

perform a standard operating system /hypervisor installation and test the configuration of that installation.

b. Hardware maintenance – CamTech will provide hardware replacements for failed components on

CamTech provided hardware at no charge under the provisions of the applicable policies of the hardware

vendor. Any operating system / hypervisor reinstallation required due to failed hardware replacement will

be performed at no charge. Please see the section entitled “Backup and data recovery” for information on

data recovery after any required system reinstallation. c. Basic monitoring – Private Cloud host servers

will be monitored by CamTech monitoring systems. By default, a server will be queried to determine

up/down status via ICMP ping or other method. Notifications of failed tests may optionally be sent to an

E-mail address provided by the Client. In addition, notifications will be dispatched to CamTech support

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personnel in the event of a service failure. d. Backup and data recovery – CamTech recommends the

nightly backup of all critical Client data. If backups are performed by CamTech as part of this Service

Agreement and a restore is necessary, CamTech will make commercially reasonable efforts to restore

Client data from the latest full backup but does not warrant that any such restoration will be successful,

complete or accurate. Client assumes all liability associated with backup and data recovery and

acknowledges that it is not relying on CamTech for providing redundancy. As with all data processes,

CamTech cannot, and does not, guarantee or warrant the viability or availability of any backup performed

via automated or manual processes.

Non-Private cloud clients / NAS clients / Barracuda clients / Any backups provided by CamTech

Backup and data recovery – CamTech recommends the nightly backup of all critical Customer data. If

backups are performed by CamTech and a restore is necessary, CamTech will make commercially

reasonable efforts to restore Client data from the latest full backup but does not warrant that any such

restoration will be successful, complete or accurate. Client assumes all liability associated with backup

and data recovery and acknowledges that it is not relying on CamTech for providing redundancy. As with

all data processes, CamTech cannot guarantee or warrant the viability or availability of any backup

performed via automated or manual processes.

Security

(a) The Internet is not a secure network. Confidential or sensitive information should not be

transmitted over the Internet unprotected. CamTech is not responsible for loss or theft of

information transmitted over the Internet. CamTech encourages Customer to employ VPN, SSL,

SSH, or other data encryption technologies when conducting business over the Internet.

(b) CamTech will employ reasonable security measures on CamTech devices, including but not limited to

routers, switches, servers and the like, including any necessary security patches, IP access

lists, and associated services. CamTech will not be responsible for security on Customer

Provided Equipment or equipment rented to Customer by CamTech. If at any time CamTech determines

that security measures, including, without limitation, patches, are necessary to protect the integrity of

the CamTech Service, CamTech may implement such security measures without communicating in

advance with the Customer and without liability to Customer. CamTech will use reasonable

commercial efforts to inform Customer of such security measures.

security and accepts no liability should Customer devices become infected. Customer is responsible for

employing industry standard anti-malware and intrusion prevention software on Customer devices.

(d) CamTech provides reasonable physical security measures for CamTech data center facilities, including

electronic security measures.

(f) Depending upon what industry Customer is operating within or what type of data Customer processes

or handles (e.g., medical or financial), there may be various security and related laws, regulations and

standards with which Customer is obligated to comply, including,

without limitation, HIPAA (Health Insurance Portability & Accountability Act),

SOX (Sarbanes Oxley Act), (GLBA) Gramm Leach Bliley Act, HITECH (Health Information

Technology for Economic & Clinical Health), and PCI DSS (Payment Card Industry Data

Security Standard) (collectively, “Compliance Standards”). While CamTech may provide certain

CamTech Services designed to assist Customer with compliance with certain Compliance

Standards, actual compliance with Compliance Standards is solely Customer’s

responsibility and CamTech is not responsible for ensuring that Customer’s systems operating in

conjunction with the CamTech Services or CamTech equipment are compliant with the Compliance

Standards. Additionally, the Compliance Standards include many features that are out of

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CamTech’s control including, without limitation, Customer’s network and business processes.

ACCORDINGLY, CamTech DISCLAIMS ANY AND ALL WARRANTIES AND

REPRESENTATIONS THAT THE CamTech SERVICES, EQUIPMENT, SYSTEMS, NETWORK

OR PROCESSES ARE COMPLIANT WITH ANY COMPLIANCE STANDARD AND CamTech

DOES NOT REPRESENT THAT CamTech WILL UNDERTAKE ANY EFFORTS TO ACHIEVE

SUCH COMPLIANCE IN THE FUTURE. [CamTech will use its reasonable commercial efforts to

cooperate with Customer in Customer’s efforts to meet its obligations under the

Compliance Standards, but without any further obligation.] Determinations of CamTech

compliance or verification of CamTech compliance with any applicable rule, law, or standard

requires a separate agreement.

(g) Customer is responsible for compliance, compliance costs and legal costs associated with

unauthorized access, breaches, suspected or detected security compromises related to

this Agreement, including without limitation, notification to regulators, consumers,

consumer credit card companies, media, and law enforcement.

(h) Customer is responsible for notifying CamTech if Customer is a “covered entity” or “business

associate” of a covered entity under HIPAA or HITECH. Customer may not use a CamTech

Service to create, receive, maintain, or transmit protected health information on behalf of

itself or any covered entity unless and until Customer has notified CamTech and the parties have

entered into a business associate agreement. Customer is responsible for notifying CamTech if

Customer intends to process any cardholder data as that term is defined in the PCI-DSS

or is required to be PCI-DSS-compliant or to meet any other Compliance Standards related

to the use or processing of cardholder data. Customer may not use a CamTech Service to create,

receive, maintain, or transmit cardholder data on behalf of itself or any other person unless

and until Customer has notified CamTech and the parties have entered into a separate agreement

regarding such Compliance Standards.

(i) Customer represents and warrants that Customer is not a resident of any country or

affiliated with any organization prohibited to do business within the United States.

(j) Customer further represents and warrants that Customer will not export, re-export, transfer,

or make available, whether directly or indirectly, any regulated item or information to

anyone outside the U.S. in connection with this Agreement without first complying with all

export control laws and regulations that may be imposed by the U.S. government and any

country or organization of nations within whose jurisdiction Customer operates or does

business.

(k) Without limiting the foregoing, Customer agrees to comply with all applicable U.S. and non-

U.S. laws, rules, regulations and orders, including, but not limited to, tax, export and import,

embargo and trade sanctions, intellectual property, including copyright, content, sales,

mail-order, commerce, and e-commerce laws and regulations. Customer shall be

responsible for determining what laws or regulations are applicable to Customer’s use of

the CamTech Services. Customer shall, upon the request of CamTech, provide CamTech assurance of

Customer’s compliance with those laws.

(l) CamTech is headquartered in the United States and currently our services are only intended for

individuals located in the United States. If you are located outside of the United States, be

advised that any information you provide to CamTech will be transferred to and stored in the

United States and that, by submitting information to CamTech, you explicitly authorize its transfer

and storage within the United States. We will protect the privacy and security of personal

information according to CamTech policies. If Customer is providing information that is subject

other security and privacy laws that require specific measures by CamTech, Customer will notify

CamTech, and Customer will be responsible for obtaining any necessary separate agreements.

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Disclaimers; Limitation of Liability

(A) Camtech does not warrant that the Camtech services or technical services will be free of errors, be

uninterrupted, or will meet customer’s requirements. The Camtech services and technical services are

provided on an “as is” basis and CAMTECH EXPRESSLY DISCLAIMS ALL

WARRANTIES, CONDITIONS, AND INDEMNITIES, EXPRESS,

IMPLIED OR STATUTORY, INCLUDING WITHOUT

LIMITATION, ANY WARRANTY OF MERCHANTIABILITY,

FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT

OR ANY OTHER WARRANTY ARISING

FROM THE COURSE OF PERFORMANCE OR COURSE OF

DEALING.

Customer understands and agrees that Camtech will not be liable for any temporary delay, outage, or

interruption of the Camtech services, or the unauthorized access (“hacking”) by any third party into

Camtech’s servers or systems, and customer has not entered into this agreement in reliance upon any

warranty or representation except those specifically set forth herein.(b) to the extent permitted by law,

Camtech disclaims for its vendors all warranties and any liability to customer for any damages, whether

direct, indirect, or consequential, arising from the Camtech services.(c) unless otherwise provided under a

service agreement, it is solely customer’s duty and responsibility to backup customer’s files and data.

Under no circumstances will Camtech be liable to customer or to any party claiming by or through

customer for damages of any kind under any legal theory for loss of customer files and/or data. (d)

Camtech is not liable for: delays in installation or restoration of the Camtech service hereunder; mistakes,

accidents, omissions, interruptions, errors or defects in the ordering, processing, provisioning, or

transmission of the Camtech service; loss or damage occasioned by acts of god, fire, elements, labor

disputes, shortages, utility curtailments, power failures, explosions, cable cut and other causes beyond

Camtech’s reasonable control; indirect, special, incidental, or consequential damages (including but not

limited to lost profits or revenues, any loss of data, loss of use, or interruption of business); punitive

damages arising from a breach of this agreement, and to the extent allowed by law, for injury to or death

of any person and for damage to or loss of any property arising out of or attributable to its operations and

performance under this agreement. Camtech’s liability for any and all causes and claims whether based in

contract, warranty, negligence or otherwise shall in no event exceed the greater of 1) an amount

equivalent to the proportionate charge by Camtech to customer for the period of service affected (not to

exceed 3 months), or 2) if applicable, the replacement value of any customer provided equipment which is

lost or damaged as a result of Camtech’s gross negligence or willful misconduct in providing Camtech

services or performing technical services. Customer acknowledges that these limitations are an essential

element of this agreement and without such limitations Camtech would not enter into this agreement.

Indemnification

(a) Customer shall indemnify, defend and hold harmless CamTech, its affiliates and their respective

directors, officers, employees, agents, successors, and assigns (the “Indemnified Parties”)

from and against any and all claims, actions, proceedings, damages, costs, expenses and

liabilities, including reasonable attorney’s fees and disbursements, arising from or related

to Customer’s use of any CamTech Service, Technical Services or the performance of its

obligations and duties under this Agreement except to the extent those damages, costs,

expenses, and liabilities arise from the negligence or willful misconduct of CamTech. CamTech shall

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promptly notify Customer in writing of any such suit or claim. (b) In addition to and not in limitation of

the Customer’s obligations under subparagraph (a)above, Customer shall indemnify, defend and hold

harmless the Indemnified Parties from and against any and all claims, actions, proceedings, damages,

costs, expenses and liabilities, including reasonable attorney’s fees and disbursements, incurred or likely

to be incurred by any Indemnified Party arising from or related to Customer’s failure to comply

with the terms of any third party software license or usage guidelines.

Altaro –

This License Agreement (“License”) is a legal agreement between you (End-

User or you) and HORNETSECURITY LIMITED, a limited liability company

organized and existing under the laws of Malta, located at Hornetsecurity

Limited, Block LS3 (Digital Hub), Level 1, Malta Life Sciences Park, San Gwann

Industrial Estate, San Gwann, SGN3000, Malta

(Hornetsecurity, Licensor, us or we). These terms shall regulate the use of

Hornetsecurity’s product and software solution that are listed in the relative

order form, or otherwise accompany this EULA (“the Licensed Software”), and

our respective rights and obligations.

BEFORE YOU SELECT THE “I ACCEPT” BUTTON AT THE BOTTOM OF THIS

WINDOW, CAREFULLY READ EACH PROVISION OF THIS AGREEMENT. BY

CLICKING ON THE “I ACCEPT” BUTTON AND/OR DOWNLOADING OR

INSTALLING THE LICENSED SOFTWARE YOU WARRANT AND REPRESENT

THAT:

 YOU ARE OVER THE AGE OF 18, YOU ARE OF THE LEGAL AGE REQUIRED

IN YOUR STATE, PROVINCE, JURISDICTION OR RESIDENCE AND YOU ARE

LEGALLY CAPABLE OF ENTERING INTO THIS AGREEMENT;

 YOU HAVE THE CAPACITY AND AUTHORITY TO BIND YOURSELF AND/OR

THE PERSON/ENTITY IN WHOSE NAME THIS LICENSE IS BEING

PURCHASED, AS APPLICABLE, TO THE TERMS AND CONDITIONS OF THIS

AGREEMENT;

 ON BEHALF OF YOURSELF AND/OR AS AN AUTHORISED

REPRESENTATIVE OF THE PERSON/ENTITY IN WHOSE NAME THIS

LICENSE WAS PURCHASED, AS APPLICABLE, YOU AGREE TO BE BOUND

BY THE TERMS AND CONDITIONS OF THIS AGREEMENT;

 YOU ARE A BUSINESS USER AND THAT YOU ARE ACTING IN A BUSINESS

OR PROFESSIONAL CAPACITY. YOU ARE NOT ABLE TO USE OUR

LICENSED SOFTWARE IF YOU ARE DEEMED TO BE A CONSUMER IN

TERMS OF CONSUMER LAWS.

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IF ANY OF THE FOREGOING WARRANTIES AND REPRESENTATIONS DO NOT

APPLY TO YOU OR IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE TERMS

AND CONDITIONS OF THIS AGREEMENT, THEN YOU ARE LEGALLY BOUND TO

CHOOSE THE “I DECLINE” BUTTON. IN SUCH CASE, YOU MAY NOT RECEIVE,

INSTALL OR USE THE LICENSED SOFTWARE. ANY USE OF THE LICENSED

SOFTWARE OTHER THAN PURSUANT TO THE TERMS AND CONDITIONS OF

THIS AGREEMENT IS A VIOLATION OF COPYRIGHT LAWS AND CONVENTIONS.

IF YOU QUALIFY AS A CONSUMER FOR THE PURPOSES OF THE CONSUMER

AFFAIRS ACT (CHAPTER 378 OF THE LAWS OF MALTA), YOU ACKNOWLEDGE

THAT UPON DOWNLOADING THE LICENSED SOFTWARE ONTO YOUR CHOSEN

MEDIUM YOU RELINQUISH YOUR RIGHT TO WITHDRAW FROM THE CONTRACT

ACCORDING TO LAW. BY CLICKING THE “I AGREE” BUTTON BELOW YOU ARE

ACCEPTING THIS LIMITATION TO YOUR RIGHT TO WITHDRAW FROM THE

CONTRACT UPON DOWNLOADING THE LICENSED SOFTWARE. IF YOU DO NOT

DOWNLOAD THE LICENSED SOFTWARE IMMEDIATELY, YOUR RIGHT TO

FREELY WITHDRAW FROM THIS AGREEMENT IS LIMITED TO FOURTEEN (14)

DAYS FROM CLICKING THE “I ACCEPT” BUTTON BELOW.

IF YOU CHOOSE THE “I DECLINE” BUTTON, OR IF YOU ARE A CONSUMER AND

YOU WITHDRAW FROM THIS AGREEMENT AS EXPRESSLY AUTHORISED AS PER

THE ABOVE, YOU MAY RETURN THE LICENSED SOFTWARE TO THE

AUTHORISED RESELLER OR DEALER FROM WHOM YOU OBTAINED IT FOR A

FULL REFUND, OR CONTACT THE LICENSOR THROUGH ITS CUSTOMER CARE

PROCEDURE ON ITS WEBSITE, PROVIDED THAT YOU DO SO WITHIN THIRTY

(30) DAYS FROM THE DATE OF YOUR PURCHASE AND THE LICENSED

SOFTWARE IS ACCOMPANIED BY ALL ORIGINAL DOCUMENTATION,

PACKAGING MATERIALS AND PROOF OF PURCHASE.

OPERATING SYSTEM REQUIREMENTS: The Licensed Software will only operate

on hardware and systems that meet certain requirements as indicated and listed

on the Licensor’s website at https://www.altaro.com/support.php These

requirements may be changed from time to time. It is in your interest to ensure

that your operating system meets the published requirements at all times.

1. Preamble. The Licensed Software is proprietary to the Licensor and is

protected by copyright and intellectual property laws and treaties. This software

product and the accompanying documentation is licensed, not sold to you

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pursuant to the terms and conditions of the End User License Agreement

(“EULA”). The Licensor will remain the owner of the Licensed Software and

documentation at all times.

2. Grant of License Rights

2.1. Production License – Subject to your payment of the applicable license fee

and full compliance with this Agreement, the Licensor grants to you the following

rights:

(a) A non-exclusive and non-transferable license to install and use a single copy

of the executable code version of the Licensed Software, including any

modifications, corrections or updates supplied to you by Licensor upon

installation or under a Maintenance/Support program and all associated user

manuals, release notes, installation notes, and other materials delivered with the

Licensed Software in printed or electronic formats (“Documentation”) on a single

workstation or server, without restriction to the number of individual “stand

alone” backup drives (e.g., tape drives, optical drives, etc.) connected to said

single workstation or server unless your purchased Production license expressly

stipulates that it provides you with additional features;

(b) The above right shall be perpetual, save for (i) termination as a result of your

breach of these terms and (ii) the case where you are licensed under a Service

Provider License Agreement (“SPLA”), where the duration of the right will be

limited to the subscription period or as may be further regulated under the SPLA

terms of the specified solution;

for archival purposes, back-up or business continuity, provided you reproduce all

the original Licensed Software’s proprietary matter including without limitation

Matter”) contained in the original copy of the Licensed Software and

Documentation and a notice that it will not be used for transfer, distribution or

sale.

2.2. Software Evaluation and Beta License

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(a) We may make the Licensed Software, a part or feature thereof available as a

pre-release or beta version (“Beta Version”). You expressly acknowledge that by

their nature, such Beta Versions are work-in-progress and as a result they may

contain bugs, cause systems to crash or result in data loss. You agree to stop

using such Beta Versions when we request you to do so.

(b) Notwithstanding anything to the contrary contained in this EULA, if you are

using a Beta or an Evaluation / Trial version of the Licensed Software and

Documentation, your rights to use the Licensed Software and Documentation

shall be subject to the following limitations:

i. your non-exclusive, non-transferable right to use and evaluate the

Licensed Software and Documentation shall terminate thirty (30) days

from the date of your initial installation of the Licensed Software (the

“Evaluation License Period”) or as alternatively defined within the Beta or

Early Access program;

ii. the Licensed Software and Documentation are furnished to you “AS IS”

without warranty of any kind, including, but not limited to, implied

warranties of quality and fitness for a particular purpose;

iii. the Licensed Software and Documentation may be used solely for Non-

Commercial / Non-Production evaluation by you;

iv. the Licensed Software and Documentation are licensed to you without fee

only for the Evaluation License Period;

v. no rights of ownership, copyright or other intellectual property in the

Licensed Software are being transferred to you;

vi. at no time shall you transfer the Licensed Software or Documentation to

any third party; and,

vii. you agree to and do hereby indemnify, defend and hold harmless the

Licensor and its parent, subsidiary, or affiliate organizations, officers,

agents, suppliers, distributors and authorized re-sellers from any and all

claims, losses, damages and expenses (including reasonable attorneys’

fees, legal expenses and court costs) asserted by any third party due to or

arising out of your breach of any provision of this EULA, your use of the

Licensed Software and Documentation for evaluation purposes, your

negligent or wrongful acts, and/or your violation of any applicable laws.

(a) and 2.2 (b) above shall apply to Software licensed under an Evaluation or

Beta License.

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2.3 Free license

(a) On occasions, we may designate that a version of the Licensed Software is

provided for free (i.e. without payment of any license fee) (“Free Version”).

(b) The use of a Free Version is subject to any terms that are outlined in the

respective software description page or solution terms made available by the

Licensor.

own production environment in accordance with the terms and conditions of this

Agreement and notwithstanding anything to the contrary contained in this EULA,

a Free Version shall be subject to the following limitations:

i. the Free Version and Documentation are furnished to you “AS IS” without

warranty of any kind, including, but not limited to, implied warranties of

quality and fitness for a particular purpose;

ii. the Free Version and Documentation are licensed to you without fee;

iii. you may not use the Free Version to provide services to third parties,

integrate with third party software, or to process third party data. Free

license versions can be used without additional purchase.

iv. no rights of ownership, copyright or other intellectual property in the Free

Version are being transferred to you;

v. you are not entitled to support and maintenance or that Licensor provide

any assistance regarding Free Version;

vi. you agree to and do hereby indemnify, defend and hold harmless the

Licensor and its parent, subsidiary, or affiliate organizations, officers,

agents, suppliers, distributors and authorized re-sellers from any and all

claims, losses, any direct, actual or indirect damages and expenses

(including reasonable attorneys’ fees, legal expenses and court costs)

asserted by any third party due to or arising out of your breach of any

provision of this EULA, your use of the Free Version and Documentation,

your negligent or wrongful acts, and/or your violation of any applicable

laws.

(d) All terms and conditions of this EULA not specifically modified by clause 2.3

(a), (b) and (c) above shall apply to Free Versions.

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2.4 “Not for Resale” license

(a) We may also choose to make Licensed Software or certain features thereof

available for demonstration, test or internal use only purposes labelled as “Not

for Resale” (collectively “NFR Software”). The license granted under an NFR

License shall be for a term of one (1) year (the “Demonstration Period”) unless

otherwise altered by Licensor, limited specifically for demonstration, test or

internal use only purposes. Notwithstanding anything to the contrary contained

in this EULA, if you acquired the NFR Software and Documentation, your rights to

use the NFR Software and Documentation shall be subject to the following

limitations:

i. you agree not to use NFR Software for resale purposes or to offer the

solution for your customers;

ii. you may not use the NFR Software to provide services to third parties,

integrate with third party software, or to process third party data.

iii. no rights of ownership, copyright or other intellectual property in the NFR

Software are being transferred to you;

iv. you agree to and do hereby indemnify, defend and hold harmless the

Licensor and its parent, subsidiary, or affiliate organizations, officers,

agents, suppliers, distributors and authorized re-sellers from any and all

claims, losses, any direct, actual or indirect damages and expenses

(including reasonable attorneys’ fees, legal expenses and court costs)

asserted by any third party due to or arising out of your breach of any

provision of this EULA, your use of the NFR Licensed Software and

Documentation, your negligent or wrongful acts, and/or your violation of

any applicable laws.

(b) All terms and conditions of this EULA not specifically modified by clause 2.4

(a) above shall apply to NFR Software.

3. Restrictions.

(a) The Licensed Software may include software components licensed to the

Licensor by third-parties, which may be subject to terms and conditions that are

different than those outlined herein. [If you would like to receive a full list of such

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components, please get in touch with Altaro (Clause 17)]. You shall be required

to comply with any and all such third-party terms that apply.

(b) Notwithstanding the terms and conditions of this EULA, all or any portion of

the Licensed Software which constituted non-proprietary software provided

under public licenses by third parties (“Freeware” or “Open Source”), is licensed

to you subject to the terms and conditions of the software license agreement

accompanying such Freeware or Open Source software whether in the form of a

discrete agreement, shrink wrap license or electronic license terms accepted at

the time of download. Use of the Freeware or Open Source software by you shall

be governed entirely by the terms and conditions of such license.

i. copy the Licensed Software and Documentation except as provided in

clause 2 above modify, translate, rent, lease, copy, re-sell, transfer, assign,

sub-license, distribute, merge, vary or modify the Licensed Software and

Documentation or any part thereof to any person or entity;

ii. make alterations to, or modifications of, the whole or any part of the

Licensed Software or permit the Licensed Software or any part of it to be

combined with, or become incorporated in, any other programs or

software solutions without a written approval from Us.;

iii. save where you are expressly authorised to do so under a SPLA and within

the limitations of such SPLA, use the Licensed Software or Documentation

in connection with a service bureau or similar activity whereby you

operate or use the Licensed Software or Documentation for the benefit of a

third party who has not purchased a copy of the Licensed Software;

iv. remove Proprietary Matter from the Licensed Software and

Documentation or modify, alter or obscure Proprietary Matter thereon;

v. to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or

make error corrections to the Licensed Software in whole or in part except

as permitted by law. Provided that where you require the aforementioned

information and/or code in order to achieve the interoperability of a

computer program independently created by yourself, you shall first

request the Licensor to provide such information (at the then applicable

commercial rates). Any information and/or code so obtained (whether

provided by the Licensor or independently procured) shall not:

1. be used for purposes other than to achieve the interoperability of

the computer program independently created by you;

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2. be given to other persons, except when necessary for the

interoperability of the independently created computer program;

3. be used for the development, production or marketing of a computer

program substantially similar in its expression to the original

program or for any other act which infringes copyright;

4. provide, or otherwise make available, the Licensed Software in any

form, in whole or in part (including but not limited to, program

listings, public sharing website, object and source program listings,

object code and source code) to any person other than your

employees without prior written consent from us;

5. use the Licensed Software via any communications network or by

means of remote access;

6. fail to comply with all applicable technology control or Export

Restrictions (Clause10)

(d) If you are a corporation or other business entity, you shall use your best

efforts to prevent your employees, customers, contractors, subcontractors and

agents from engaging in any of the above prohibited activities and to supervise

and control the use of the Licensed Software by the said persons and ensure that

the Licensed Software is used by such employees, customers, subcontractors and

agents in accordance with the terms of this License.

(e) Although you own the media on which the Licensed Software and

Documentation are recorded, the Licensor and/or its suppliers retain all rights,

title and interest in and to (i) the Licensed Software and Documentation

(including, without limitation, images, photographs, animations, video, audio,

music, text and so-called “applets”), (ii) all copies, improvements, enhancements,

modifications and derivative works of the Licensed Software or Documentation,

and (iii) all patents, copyrights, trade secrets, trademarks and other intellectual

property rights subsisting in the Licensed Software and Documentation and

copies, improvements, enhancements, modifications and derivative works

thereof.

(f) Your rights to use the Licensed Software and Documentation shall be limited

to those expressly granted in clause 2 above. All rights not expressly granted to

you are retained by Licensor and/or its suppliers. You agree to refrain from any

action that would diminish such rights of the Licensor or would call such rights

into question. The rights granted herein are limited to the Licensor’s copyright in

Page 14 of

the Software and do not include any other patents or intellectual property rights

of the Licensor or third parties.

(g) You hereby agree to, and do, indemnify, save and hold harmless the Licensor,

its agents, suppliers, distributors and authorised resellers from any and all

damages, liabilities, costs and expenses (including reasonable attorneys’ fees,

legal expenses and court costs) arising out of or connected with any claim,

demand or proceeding which relates in any way to your use of the Licensed

Software and Documentation in a manner not explicitly authorised by this EULA.

(h) Any failure to comply within clause 3 or any other term or condition

contained in this EULA shall result in the automatic termination of this license

and the reversion of the rights granted hereunder to the Licensor.

4. Limited Warranties.

(a) Subject to the limitations and exclusions of liability below, the Licensor

warrants that the Licensed Software as delivered by the Licensor and when used

in accordance with the Documentation shall substantially conform with the

functions described in the Documentation for a period of ninety (90) days from

initial Licensed Software purchase. Licensor does not warrant that the Licensed

Software will meet all of Your requirements or that the use of the Licensed

Software will be uninterrupted or error-free. The warranty shall not apply if the

Licensed Software fails to operate in accordance with the said warranty as a

result of use in breach of these terms, accident, misuse, unauthorised repair,

modification, enhancement, misapplication or failures that are caused by other

software or hardware products.

(b) For any Licensed Software that does not operate as warranted in clause 4(a)

above, the Licensor shall, at its sole discretion, promptly repair the Licensed

Software, replace the Licensed Software with software of substantially the same

functionality, or terminate the license and refund the relevant license fee paid for

such non-compliant Licensed Software, provided that you return the Licensed

Software to the Licensor or its authorised reseller from whom you obtained it,

together with the purchase receipt within the warranty period. This obligation of

the Licensor is subject to your obligation to make available all information

requested and that may be necessary to help the Licensor to remedy the defect or

Page 15 of

fault, including sufficient information to enable the Licensor to recreate the

defect or fault.

Software, unless expressly agreed otherwise.

(d) You are to take all such measures as are reasonable to avoid and reduce

potential damages, such as by taking regular backups.

(e) Subject to clause 4(a) above, the software is provided to you “AS IS”. THE

LICENSOR DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR

ENJOYMENT OF THE SOFTWARE AND SERVICES, THAT THE FUNCTIONS

CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE SOFTWARE

WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE

OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY SERVICES

WILL CONTINUE TO BE MADE AVAILABLE, THAT THE SOFTWARE OR SERVICES

WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE,

APPLICATIONS OR THIRD PARTY SERVICES, OR THAT DEFECTS IN THE

SOFTWARE OR SERVICES WILL BE CORRECTED. INSTALLATION OF THIS

SOFTWARE MAY AFFECT THE USABILITY OF THIRD PARTY SOFTWARE,

APPLICATIONS OR THIRD PARTY SERVICES. NO ORAL OR WRITTEN

INFORMATION OR ADVICE GIVEN BY THE LICENSOR OR AN AUTHORIZED

REPRESENTATIVE SHALL CREATE A WARRANTY, WHETHER EXPRESS OR

IMPLIED, OR IN ANY WAY ALTER THE SCOPE OF THIS LIMITED WARRANTY.

(f) SAVE FOR AS PROVIDED IN clause 4 (b) ABOVE, SHOULD THE SOFTWARE

OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL

NECESSARY SERVICING, REPAIR OR CORRECTION.

(g) IF YOU ARE A CONSUMER AND THE ABOVE LIMITATIONS ON OUR

WARRANTIES ARE STATUTORILY NOT APPLICABLE IN FULL, THE RIGHTS

GRANTED TO YOU AT LAW BEYOND THAT WHICH IS WARRANTED BY US

ABOVE, SHALL BE INTERPRETED AS RESTRICTIVELY AS THE LAW ALLOWS

FOR.

5. Disclaimers.

Page 16 of

(a) THE WARRANTIES SET FORTH IN CLAUSE 4 ABOVE ARE YOUR ONLY

WARRANTIES AND ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER

EXPRESS OR IMPLIED. THE LICENSOR EXPRESSLY DISCLAIMS ALL OTHER

WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY,

QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES OF

STATUTORY NON-INFRINGEMENT. NO THIRD PARTY, INCLUDING, WITHOUT

LIMITATION, THE LICENSOR’S AGENTS, SUPPLIERS, DISTRIBUTORS AND

AUTHORIZED RE-SELLERS, IS AUTHORISED TO MODIFY ANY OF THE ABOVE

WARRANTIES ON BEHALF OFTHE LICENSOR.

(b) YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT

PERMITTED BY APPLICABLE LAW, USE OF THE LICENSED SOFTWARE AND ANY

SERVICES PERFORMED BY OR ACCESSED THROUGH THE LICENSED SOFTWARE

IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY

QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU.

SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR

ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR

INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE

LICENSED SOFTWARE OR SERVICES COULD LEAD TO DEATH, PERSONAL

INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE, INCLUDING

WITHOUT LIMITATION THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT

NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE

SUPPORT OR WEAPONS SYSTEMS.

(d) IF THE EXCLUSION OF ANY IMPLIED WARRANTIES IS RENDERED

INAPPLICABLE AS A RESULT OF STATUTORILY MANDATED RULES, OR AS

DEFINED BY SOME JURISDICTIONS, ANY SUCH IMPLIED WARRANTIES THAT

ARE PRESCRIBED BY LAW, SHALL BE LIMITED TO THE BARE MINIMUM

ALLOWED FOR BY THE SAME LAW AND SHALL NOT EXTEND IN DURATION

BEYOND NINETY (90) DAYS FROM THE DATE OF PURCHASE OF THE LICENSED

SOFTWARE OR TO THE MINIMUM PERIOD PRESCRIBED BY LAW.

NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS EULA SHALL

EXCLUDE OR LIMIT ANY LIABILITY OF THE LICENSOR WHICH, BY LAW OR

REGULATION APPLICABLE TO THIS EULA, CANNOT BE EXCLUDED OR LIMITED.

FOR WARRANTY ASSISTANCE, CONTACT THE LICENSOR OR THE AUTHORISED

RESELLER FROM WHOM YOU OBTAINED THE LICENSED SOFTWARE.

Page 17 of

(e) The Licensed Software may be used or utilised by technology providers,

software providers or other third parties (each “the Service Provider”) to provide

you with certain services, such as managed backup (“Managed Services”).

We are not a party to the agreement or understanding that you have with the

Service Provider in relation to the provision of Managed Services.

The Service Provider shall be solely and fully responsible for providing you with

the Managed Services and complying with the terms and conditions relating

thereto, including any negligence, misconduct or breach.

You shall keep us free and fully indemnified from and against any claim that you

may have in relation to the Managed Services or to any breach of the Service

Provider’s obligations towards you or for anything done or omitted to be done by

the Service Provider in providing the Managed Services.

6. Limitations on Liability.

(a)The Licensor shall not be liable whether in contract, (including for negligence

or breach of statutory duty, howsoever arising), misrepresentation (whether

innocent or negligent), restitution or otherwise, for:

1. any loss (whether direct or indirect) of profits, savings, business, business

opportunities, revenue, turnover, reputation or goodwill;

2. any loss or corruption (whether direct or indirect) of data or information;

3. any loss (whether direct or indirect) of anticipated savings or wasted

expenditure (including management time); or

4. any indirect or consequential loss or liability.

(b) Unless excluded, the Licensor’s maximum aggregate liability for all loss,

damage and expense arising under this Agreement shall not exceed €10.

1. personal injury or death;

Page 18 of

2. fraud or fraudulent misrepresentation;

3. any other liability to the extent that the same cannot be excluded or limited

by law.

7. Indemnification. You agree to and do hereby indemnify, defend and hold

harmless the Licensor and its parent, subsidiary, or affiliate organisations,

officers, agents, suppliers, distributors and authorised re-sellers from any and all

claims, losses, damages and expenses (including reasonable attorneys’ fees, legal

expenses and court costs) asserted by any third party due to or arising out of

your breach of any provision of this EULA, your use of the Licensed Software and

Documentation, your negligent or wrongful acts, and/or your violation of any

applicable laws.

8. Termination of Your Rights. Your rights to use the Licensed Software and

Documentation as specified in clause 2 above shall terminate immediately and

without notice to you if you fail to comply with any of the provisions of this EULA

and/or any other agreement made in connection with this EULA, including a

SPLA. Upon termination for any reason all rights granted to you under this

License shall cease, you shall immediately discontinue the use of and destroy,

delete or remove, the Licensed Software and Documentation, including, without

limitation, any master copies, archival copies and all copies or portions thereof,

that are in your possession or were installed on computer peripherals by you.

Within ten (10) days of such termination you shall certify in writing to Licensor

that all such copies have been destroyed. You hereby also consent to the Licensor

and/or its agents, or employees, inspecting your computer peripherals under

your supervision, to ensure that the Licensed Software and Documentation has

been so deleted and/or destroyed.

9. Compliance with Applicable Law. Each party agrees to comply with all

applicable laws, rules and regulations in connection with its activities under this

EULA.

10. Export Restrictions. You agree to comply with all applicable export control

laws, including the EU Common Foreign and Security Policy, the United States

Export Administration Act, or any other export laws or regulations. By using the

Licensed Software and Documentation, you represent and take full and sole

responsibility that i) you are not located in or under the control of or a national

or resident of any country or on any list which prohibit the exportation of the

Page 19 of

Licensed Software ii) to any person or entity who you know or have reason to

know will utilize the Licensed Software or portion therefore in the design,

development, production or use of nuclear, chemical or biological materials,

facilities or weapons or iii) to any person or entity who has been prohibited from

participating in U.S. by any federal agency of the U.S. government or EU export

restrictions.

11. Intellectual Property Rights. The Licensed Software and related

documentation are copyrighted works of authorship and are also protected

under applicable database laws. The Licensor retains ownership of the Licensed

Software, all subsequent copies of the Licensed Software and all intellectual

property rights subsisting therein, regardless of the form in which the copies may

exist. This EULA is not a sale of the original Licensed Software or any copies

thereof.

12. Maintenance and Support. If the Licensed Software includes and grants you

the right for maintenance and support as defined in clause 2, these services will

commence upon the date your order is processed and the license file is

generated. You will receive support for your Licensed Software and any updates,

enhancements or improvements that are included or defined in the Maintenance

Policies. Licensed Software updates cannot be applied to the Licensed Software

with an expired Software Maintenance Agreement. If the Licensed Software is an

upgrade from an earlier release or previously released version, you are hereby

authorised to use the upgrade only in accordance with this EULA. Consequently,

any prior agreements with respect to earlier or previous versions of the Licensed

Software shall be deemed null and void and superseded in all respects by this

EULA.

Updates and upgrades may be automatically downloaded and installed from time

to time. These updates may consist of bug fixes, new features, or new versions.

You expressly acknowledge and agree that updates or upgrades may not

necessarily include all features of the previous version. You agree to receive such

updates as part of the use of the Licensed Software. The terms of this EULA will

govern such updates or upgrades, unless such update or upgrade is accompanied

by a separate license in which case the terms of that license shall prevail.

13. Privacy. You acknowledge that the Licensor collects and process technical

information for business purposes and improving the Licensed Software, as part

Page 20 of

of any product maintenance and support services provided to you, and any other

technical information you provide to Licensor, provided that such information

does not identify You, as a specific individual.

(a) In the event that you provide personal information to Licensor as part of your

purchase and use of the Software, or for obtaining Maintenance, or we other

process personal data in our capacity as data processors (in terms of applicable

data protection legislation), your personal information will be used, stored and

processed in accordance with Hornetsecurity Privacy Policy, which can be found

at https://www.hornetsecurity.com/en/privacy/. You also have the ability to

update your preferences by visiting Hornetsecurity Customer Portal.

(b) The Licensed Software has the capability to collect and process technical

information such as configuration, performance, usage, consumption data which

may include the number of times you use the “restore” functionality, the size of

the backup, hardware identification, operating system, application software,

peripheral hardware, Internet Protocol Address, The Licensor shall under no

circumstances ever collect or examine the contents of any files you are backing

up or restoring, unless agreed to specifically between the two parties or required

by specific circumstances, in which case you will be informed in advance.

licensor technical support team. During this error report generation process,

which is done through manual user intervention, application debug data files,

configuration files, log files, system information and personal information (Name,

Email, Phone Number) will be generated and submitted for automatic support

case generation.

14. Compliance. During the period this EULA remains in effect and for three (3)

years following the termination of your rights pursuant to clause 8, Licensor has

the right to verify your compliance with this EULA on your premises during your

normal business hours and in a manner that minimises disruption to your

business. The Licensor may use an independent auditor for this purpose with

your prior approval which you shall not unreasonably withhold.

15. Feature and Capacity Limitations in Software – For certain Licensed

Software, your use of the Licensed Software may be limited by the features and

Page 21 of

capacity purchased. In the event that you exceed the purchased capacity, the

Licensed Software may not support certain features or process additional

workloads beyond the maximum capacity until you purchase additional capacity

or upgrade to another suitable version.

16. Community Forums or Blogs – Any information that you post on the

Community Forums or Blogs is deemed non-confidential to you. Hornetsecurity

has no obligation to manage or protect any information (confidential or

personal) that you disclose on the Hornetsecurity / Altaro Community Forums or

Hornetsecurity / Altaro Blogs.

17. Queries. If you have any queries regarding this EULA,

email info@hornetsecurity.com with the word ‘EULA’ as the subject line.

18. Governing Language. Any translation of this License from the English

language is made solely for local requirements and in the event of a dispute

between the English and any non-English versions, the English version of this

License shall govern.

19. General.

(a) Unless you have entered into a separate, written and signed agreement with

the Licensor for the supply of Licensed Software, this EULA is the complete and

exclusive statement of the agreement between you and the Licensor with respect

to the Licensed Software and Documentation and the subject matter covered by

this EULA and supersedes any and all prior or contemporaneous

communications, proposals, agreements, purchase orders or similar terms issued

by or to you, whether oral or written. No modification, amendment, waiver,

termination or discharge of this EULA or of any of the terms and conditions

hereof shall be binding upon either you or the Licensor unless confirmed by a

written instrument signed by you and by a duly authorised officer of the

Licensor. No waiver by you or the Licensor of any provision of this EULA or of

any default hereunder shall affect your or the Licensor’s respective rights

thereafter to enforce such provision, or to exercise any right or remedy, in the

event of any other default, whether or not similar.

Page 22 of

(b) If any provision of this EULA shall be held void, voidable, invalid or

inoperative, no other provision of this EULA shall be affected as a result thereof

and, accordingly, the remaining provisions of this EULA shall remain in full force

and effect as though such void, voidable, invalid or inoperative provision had not

been contained herein.

the laws of Malta and without regard to principles of conflicts of law. Any and all

actions, suits and proceedings arising out of or relating to this EULA shall be

brought only in the courts of Malta, and the parties hereby unconditionally and

irrevocably consent and submit to such exclusive jurisdiction and waive any

objection that they may now or hereafter have with respect thereto.

(d) We may transfer our rights and obligations under this License to another

organisation. We will inform you of such assignment. You may only assign your

rights and obligations to another person if we agree in writing prior to the

assignment taking place. A change of control shall constitute an assignment.

(e) Licensor will not be liable for any delay or failure to perform obligations

under this Agreement due to any cause beyond its reasonable control, including

acts of God, industrial disturbances, labor disputes, earthquakes, storms or other

elements of nature; systematic electrical, telecommunications or other utility

failures; riots; acts of terrorism; war; embargoes or acts or orders of government;

(f) If we fail to insist that you perform any of your obligations under this License,

or if we do not enforce our rights against you, or if we delay in doing so, that will

not mean that we have waived our rights against you and will not mean that you

do not have to comply with those obligations. If we do waive a default by you, we

will only do so in writing, and that will not mean that we will automatically waive

any later default by you.

PLEASE INDICATE YOUR ACCEPTANCE OR REFUSAL TO THE TERMS AND

CONDITIONS OF THIS EULA BY SELECTING THE “I ACCEPT THE TERMS IN THE

LICENSE AGREEMENT” OR THE “CANCEL” BUTTON TO ABORT INSTALLATION.

Page 23 of

Barracuda –

The General Terms and Conditions (“General Terms”), together with

all applicable Schedules (collectively, the “Agreement”) are a legal

agreement between you, a legal entity (“Customer”), and Barracuda

Networks, Inc. (“Barracuda”). If you are not legally able to be bound

by the Agreement or do not want to consent to the terms of the

Agreement, your use of the Products is strictly prohibited. Your use of

the Products is subject at all times to this Agreement, as amended

from time to time. If you do not unconditionally agree to the foregoing,

discontinue the installation or use of the Products. If you proceed with

use, you are (i) representing and warranting that you are authorized to

bind the Customer; and (ii) agreeing to the Terms.

Order of Precedence. The General Terms are applicable to all

Barracuda Products and set forth the terms under which the Customer

may use Barracuda Products. Certain Products are subject to

additional terms and conditions, which are set forth in the applicable

“Schedule.” In the event of a conflict or inconsistency between any of

the General Terms and a Schedule, the Schedule will govern.

GENERAL TERMS AND CONDITIONS

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING

A BARRACUDA PRODUCT. BY USING A BARRACUDA

PRODUCT, CUSTOMER AGREES TO BE BOUND BY THE TERMS

OF THIS AGREEMENT.

IF CUSTOMER LIVES IN THE UNITED STATES, THIS

AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE

AND CLASS ACTION WAIVER. IT AFFECTS CUSTOMER’S

RIGHTS REGARDING HOW TO RESOLVE ANY DISPUTE WITH

BARRACUDA. PLEASE READ IT CAREFULLY.

1. Definitions.

Page 24 of

1.1. “Barracuda Materials” means all Barracuda proprietary

materials, including, but not limited to, Deliverables, Products and

intellectual property related to Products and Documentation.

1.2. “Deliverables” means any written reports and materials that are

created specifically for Customer as a result of Professional Services

provided hereunder, as set forth in Schedule 6 (“Professional Services

Terms”).

1.3. “Delivery” with respect to Hardware means the date of shipment,

and with respect to Software and Hosted Services means when the

Software or Hosted Service is made available by Barracuda.

1.4. “Documentation” means manuals or other materials provided by

Barracuda related to the Products in electronic or other form, as

amended from time to time by Barracuda.

1.5. “Effective Date” shall mean the date of Delivery of the Products.

1.6. “Hardware” means a physical appliance provided by Barracuda.

1.7. “Hosted Service” means the right to use a cloud system or

platform hosted by Barracuda, which provides the services and

functionality set forth in the applicable Specification.

1.8. “Hosted Service Term” means the length of time for which a

Hosted Service is purchased.

1.9. “Intellectual Property Rights” means copyrights (including,

without limitation, the exclusive right to use, reproduce, modify,

distribute, publicly display and publicly perform the copyrighted work),

trademark rights (including, without limitation, trade names,

trademarks, service marks and trade dress), patent rights (including,

without limitation, the exclusive right to make, use and sell), trade

secrets, moral rights, right of publicity, authors’ rights, contract and

licensing rights, goodwill and all other intellectual property rights as

may exist now and/or hereafter come into existence and all renewals

Page 25 of

and extensions thereof, regardless of whether such rights arise under

the law of the United States or any other state, country or jurisdiction.

1.10. “Product” means, collectively, any Hardware, Software,

Subscriptions, Hosted Service, Services and any combination thereof.

1.11. “Order” means a written purchase order or similar ordering

document, signed or submitted to Barracuda under which the Products

are provided for Customer’s use.

1.12. “Professional Services” means consulting services provided by

Barracuda under a Statement of Work and/or set forth on an Order.

1.13. “Software” means software embedded in Hardware, used to

provide a Hosted Service or any software licensed to Customer as a

Subscription, including any Updates thereto.

1.14. “Service” or “Services” means Professional Services and

Support Services.

1.15. “Specification” means the functionality for the Product as

documented in the Product data sheet.

1.16. “Statement of Work” or “SOW” means a document between

Barracuda and Customer, describing Professional Services, rates and

timelines for those Professional Services.

1.17. “Subscription” means a license provided by Barracuda for a

Subscription Term under which Barracuda provides access to certain

features and functionality, as described in the Specification, which is

provided subject to the applicable Schedule, if any, and these General

Terms.

1.18. “Subscription Term” means the length of time for which a

Subscription is purchased.

1.19. “Support Term” means the length of time for which the Support

Service is purchased.

Page 26 of

1.20. “Support Services” means the maintenance and technical

support services provided by Barracuda with respect to each Product,

as described in Schedule 5 (“Support Services Terms”).

1.21. “Update” means minor enhancements, error corrections and bug

fixes to the Software.

2. Modification. Barracuda reserves the right to modify the

Agreement at any time, in its sole discretion, without liability to

Customer. The Agreement, as amended, will be effective upon use of

the Products for all existing users immediately after any amended

terms are posted online. If Customer has signed up for email updates,

Barracuda will provide email notice to Customer of the update.

Customer’s continued use of the Products shall be deemed

acceptance of the modified terms.

3. Orders and Statements of Work.

3.1. Orders. Products will only be provided to Customer after

Barracuda has received and accepted an Order for such Product.

Orders are not binding upon Barracuda until accepted in writing by

Barracuda. All Orders will be governed by this Agreement and are

noncancelable and nonrefundable after Delivery, except as set forth in

Section 5.2 (“Returns”).

3.2. Statements of Work. Each Statement of Work is governed by this

Agreement. Barracuda will not be obligated to perform any

Professional Services until a Statement of Work describing those

Professional Services has been agreed upon by both parties or an

Order listing those Professional Services has been accepted by

Barracuda in writing.

4. Payment Terms.

4.1. Fees and Expenses. If Customer purchases directly from

Barracuda, Customer will pay Barracuda the fees specified on the

invoice associated with each Order or Statement of Work (“Fees”). If

Customer purchases through a Barracuda authorized reseller, all fees

Page 27 of

and other procurement and delivery terms shall be agreed upon

between Customer and the applicable reseller. Fees for usage in

excess of amounts purchased will be billed by Barracuda in the next

billing cycle and Customer acknowledges that such additional fees

must be paid in accordance with the terms herein.

4.2. Payment. If Customer purchases directly from Barracuda,

payment is due within thirty (30) days of the date of each invoice.

Payment will be made by credit card, wire transfer or another

prearranged payment method unless Barracuda has extended credit

terms to Customer. All Fees described in an Order or Statement of

Work will be fully invoiced in advance, unless otherwise agreed to in

writing by Barracuda. If any payment is past due, Barracuda may,

without limiting any remedies available to Barracuda, suspend

performance until payment is made current. Customer will pay interest

on all delinquent amounts at the lesser of one and one half percent

(1.5%) per month or the maximum rate permitted by applicable law.

4.3. Increases. Barracuda reserves the right to increase prices for

Products at any time, provided however that any price increase for

Subscriptions, Hosted Services and Support Services will not go into

effect until the end of the then-current term, as applicable.

4.4. Taxes. All Fees are exclusive of all sales, use, excise, value

added, goods and services, withholding and other taxes, and all

customs, duties and tariffs now or hereafter claimed or imposed by

any governmental authority upon the sale or use of the Products,

which shall be invoiced to and paid by the Customer. If Customer is

required by law to make any deduction or withholding on any

payments due to Barracuda, Customer will notify Barracuda and will

pay Barracuda any additional amounts necessary to ensure that the

net amount Barracuda receives, after any deduction or withholding,

equals the amount Barracuda would have received if no deduction or

withholding had been required. Additionally, Customer will provide

Barracuda with evidence, to the reasonable satisfaction of Barracuda,

showing that the withheld or deducted amounts have been paid to the

relevant governmental authority. For purposes of calculating sales and

Page 28 of

similar taxes, Barracuda will use the address set forth on the Order or

Statement of Work, as applicable, for the jurisdiction to which Products

and shipments are delivered unless Customer has otherwise notified

Barracuda. Customer will provide tax exemption certificates or directpay

letters to Barracuda as applicable.

4.5. Payment Disputes. Customer must notify Barracuda of any billing

problems or discrepancies within sixty (60) days of the applicable

Barracuda invoice date. Customer must send such notification to

Barracuda as indicated in Section 21 (“Notices”). If Customer does not

bring such problems or discrepancies to Barracuda’s attention within

such sixty (60) day period, Customer agrees that it waives the right to

dispute such problems or discrepancies.

4.6. Offsets. Customer shall pay all amounts due and payable to

Barracuda under this Agreement to Barracuda 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 law and in compliance with Section 4.4

(“Taxes”).

4.7. Import/Export Fees. Customer is responsible for any import or

export fees or duties associated with its purchase or use of the

Products.

5. Title and Returns.

5.1. Title; Ownership.

5.1.1. Hardware. All Hardware is shipped from Barracuda’s designated

manufacturing facility or point of origin (Exworks origin) (Incoterms

2010). Title to such Hardware and the risk of loss of or damage to

Hardware shall pass to Customer at the time of shipment from

Barracuda’s facility. Barracuda is authorized to designate a carrier

pursuant to Barracuda’s standard shipping practices unless otherwise

specified in writing by Customer. Customer must provide written notice

to Barracuda within ten (10) days of Delivery of the Products of any

non-conformity with the Order (e.g., Delivery of the wrong Product or

Page 29 of

incorrect quantities). Partial shipment is expressly permitted

hereunder, and separate charges for shipping and handling will be

charged on Barracuda’s invoice.

5.1.2. Software. Barracuda retains right, title and ownership to all

Software, and Customer’s license and usage rights to Software as set

forth in Schedule 1 (“Software Use and Restrictions”).

5.1.3. Customer Data. “Customer Data” means all data, including text,

sound, video, or image files and software, that Customer provides to

Barracuda, or that is provided on Customer’s behalf. Customer retains

ownership of Customer Data at all times. Barracuda will use Customer

Data only in accordance with the Barracuda Privacy Policy.

5.2. Returns. Customer may cancel all Orders for new Products

(excluding renewals, upgrades and migrations) within thirty (30) days

of the Effective Date of any Term (“Cancellation Period”).” After the

Cancellation Period, all Orders are non-cancellable and the Fees paid

to Barracuda are nonrefundable. Fees for installation or training

provided by Barracuda are non-cancellable and nonrefundable once

performance commences.

6. Third Party Products and Services. Third party products or services

may contain features designed to interoperate with the Products. To

use such features, Customer must obtain access to such third-party

apps from their respective providers. If Customer chooses to utilize

such third-party apps, the following terms shall apply:

(i) All governing terms and conditions, including data processing

terms, shall be entered into between Customer and the applicable

third-party app provider;

(ii) Customer may be required to grant Barracuda access to

Customer’s account on such third-party apps;

(iii) Customer instructs Barracuda to allow the third-party app provider

to access Customer Data as required for interoperation with the

Products; and

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(iv) In the event the operation of a third party app requires the

processing of personal data to which the General Data Protection

Regulation (“GDPR”) applies in a country that does not provide

adequate data protection safeguards, then Customer and the third

party app provider must put in place an adequate data transfer

mechanism as set forth in Arts. 46 or 47 of the GDPR, including

executing appropriate Standard Contractual Clauses, as needed.

Barracuda shall not be responsible for any disclosure, modification or

deletion of Customer Data resulting from access by such third-party

app providers. Third party app providers do not operate as

subprocessors to Barracuda. Barracuda is not liable for, and does not

warrant or support, any such third-party apps. Barracuda cannot

guarantee the continued availability of such third party apps and may

cease providing them without entitling Customer to any refund, credit

or other compensation, if, for example, the provider of the third-party

app ceases to make its product or service available in a manner

acceptable to Barracuda.

7. Professional Services. If applicable, Professional Services will be

provided in accordance with these General Terms and Schedule

6 (“Professional Services Terms”).

8. Support Services and Product Upgrades.

8.1. Support Services.

8.1.1. Support Services Purchase. Support Services may be

purchased separately, or for Hosted Services, may be bundled into the

price. Customer is not entitled to Support Services until Barracuda

receives payment in full for such Support Services.

8.1.2. Support Services Entitlement. For Customers with active

Support Services, the following shall apply:

8.1.2.1. Support Services will only be available for the specific Product

for which the Support Services is purchased. Applying Updates or

receiving Support Services on systems where no valid entitlement has

been purchased is strictly forbidden and in violation of this Agreement.

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8.1.2.2. For Hardware, Customer is entitled to receive replacement of

defective hardware as set forth in Schedule 5 (“Support Services

Terms”).

8.1.2.3. For Software, Customer is entitled to Updates to Software.

Barracuda shall provide Customer with all Updates, without additional

charge, in accordance with Schedule 5 (“Support Services Terms”).

Upon Delivery to Customer, each Update will constitute Software and

will thereafter be subject to and governed by this Agreement, including

without limitation the license and warranty terms.

8.1.2.4. Support Services for Software are required at all times for

continued access to the full functionality and proper operation of the

Product. Customer acknowledges that failure to pay for ongoing

Support Services will limit or degrade the functionality of the Products.

8.2. Upgrades. Upgrades are not included in Support Services and

may be purchased separately from Barracuda.

9. Intellectual Property.

9.1. Ownership of Barracuda Materials; Restrictions. All Intellectual

Property Rights in Barracuda Materials belong exclusively to

Barracuda and its licensors. Customer will not (and will not allow any

third party to): (i) disassemble, decompile, reverse compile, reverse

engineer or attempt to discover any source code or underlying ideas

or algorithms in any Barracuda Materials (except to the limited extent

that applicable law prohibits reverse engineering restrictions); (ii) sell,

resell, distribute, sublicense or otherwise transfer the Barracuda

Materials, or make the functionality of the Barracuda Materials

available to any other party through any means (unless Barracuda has

provided prior written consent); (iii) without the express prior written

consent of Barracuda, conduct any benchmarking or comparative

study or analysis involving the Barracuda Materials (“Benchmarking”)

for any reason or purpose except, to the limited extent absolutely

necessary, to determine the suitability of Products to interoperate with

Customer’s internal computer systems; (iv) disclose or publish to any

third party any Benchmarking or any other information related thereto;

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(v) use the Barracuda Materials or any Benchmarking in connection

with the development of products, services or subscriptions that

compete with the Barracuda Materials; (vi) use any Barracuda

trademarks for any purpose not expressly granted by Barracuda in

advance and in writing; or (vii) reproduce, alter, modify or create

derivatives of the Barracuda Materials.

9.2. Feedback. Customer hereby grants Barracuda a perpetual,

irrevocable, worldwide license to use any Feedback (as defined

below) that Customer communicates to Barracuda, without

compensation, without any obligation to report on such use, and

without any other restriction. Barracuda’s rights granted in the

previous sentence include, without limitation, the right to exploit

Feedback in any and every way, as well as the right to grant

sublicenses. Notwithstanding the provisions of Section 12

(“Confidential Information”), Feedback will not be considered

Customer’s Confidential Information. “Feedback” refers to any

suggestion or idea for modifying any Products, including, without

limitation, all Intellectual Property Rights in and to any such suggestion

or idea.

10. Waiver of Consequential Damages and Limitation of Liability.

10.1. WAIVER OF CONSEQUENTIAL DAMAGES. UNDER NO

CIRCUMSTANCES SHALL EITHER PARTY, OR ITS SUPPLIERS,

RESELLERS, PARTNERS OR THEIR RESPECTIVE AFFILIATES,

BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL,

SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING FROM

OR RELATED TO THE PRODUCTS, WHETHER SUCH CLAIM IS

BASED ON WARRANTY, CONTRACT, TORT (INCLUDING

NEGLIGENCE), OR OTHERWISE (EVEN IF THE PARTY HAS BEEN

ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).

10.2. LIMITATION OF LIABILITY. THE TOTAL AGGREGATE

LIABILITY OF BARRACUDA AND ITS SUPPLIERS, RESELLERS,

PARTNERS AND THEIR RESPECTIVE AFFILIATES ARISING FROM

OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE

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TOTAL AMOUNTS OWED OR PAID BY CUSTOMER FOR THE

RELEVANT PRODUCTS DURING THE TWELVE (12) MONTH

PERIOD IMMEDIATELY PRECEDING THE FIRST OCCURRENCE

OF THE EVENTS GIVING RISE TO SUCH LIABILITY.

10.3. APPLICABILITY. THE FOREGOING LIMITATIONS OF

LIABILITY SHALL APPLY (A) TO LIABILITY FOR NEGLIGENCE; (B)

REGARDLESS OF THE FORM OF ACTION, WHETHER IN

CONTRACT, TORT, STRICT PRODUCT LIABILITY OR

OTHERWISE; (C) EVEN IF A PARTY IS ADVISED IN ADVANCE OF

THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF

SUCH DAMAGES WERE FORESEEABLE; (D) WHETHER THE

DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON

THE PRODUCTS, FROM INABILITY TO USE THE PRODUCTS OR

FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF

THE PRODUCTS (INCLUDING SUCH DAMAGES INCURRED BY

THIRD PARTIES). SUCH LIMITATION SHALL APPLY

NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF

ANY LIMITED REMEDY AND TO THE FULLEST EXTENT

PERMITTED BY LAW.

THE LIMITATIONS AND EXCLUSIONS CONTAINED HEREIN WILL

APPLY ONLY TO THE MAXIMUM EXTENT PERMISSIBLE UNDER

APPLICABLE LAW, AND NOTHING HEREIN PURPORTS TO LIMIT

EITHER PARTY’S LIABILITY IN A MANNER THAT WOULD BE

UNENFORCEABLE OR VOID AS AGAINST PUBLIC POLICY IN THE

APPLICABLE JURISDICTION.

11. Export and Compliance with Laws.

11.1. Export.

11.1.1. The Products, including technical data, are subject to U.S.

export control laws, including, but not limited to, the U.S. Export

Administration Act and its associated regulations, and may be subject

to export or import regulations in other countries. Customer agrees to

strictly comply with all such regulations and acknowledges that it has

the responsibility to obtain licenses to export, re-export or import

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Products. Barracuda provides multiple versions of Products targeted

for specific geographic regions.

11.1.2. Customer shall not: (a) permit any third party to access or use

the Products in violation of any U.S. law or regulation; (b) export the

Products or otherwise relocate them unless such export and/or

relocation is in full compliance with all applicable local and U.S. laws

and regulations. Without limiting the foregoing, Customer shall not

permit any third party to access or use the Products in, or export it to,

a country subject to a United States embargo (currently, Cuba, Iran,

North Korea, Sudan, the Crimea Region in the Ukraine and Syria); or

territory or country, or take any action otherwise in violation of any

applicable restrictions or regulations.

11.2. Compliance with Laws. Customer agrees to comply with all

applicable laws related to its performance of the obligations set forth in

this Agreement, including, but not limited to, any applicable privacy

laws.

11.2.1 If Customer is a United States Government agency, the

Products and Documentation qualify as “commercial items”, as that

term is defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.

2.101), consisting of “commercial computer software” and “commercial

computer software documentation” as such terms are used in FAR

12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1

through 227.7202-4, and notwithstanding any other FAR or other

contractual clause to the contrary in any agreement into which this

Agreement may be incorporated, Government end user will acquire

the Products and Documentation with only those rights set forth in this

Agreement. Use of either the Products or Documentation or both

constitutes an agreement by the Government that the Products and

Documentation are “commercial computer software” and “commercial

computer software documentation”, and constitutes acceptance of the

rights and restrictions herein.

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11.2.2. The Products are provided with Restricted Rights. Use,

duplication or disclosure for or by the government of the United States,

including without limitation any of its agencies or instrumentalities, is

subject to restrictions set forth, as applicable: (i) in subparagraphs (a)

through (d) of the Commercial Computer Software-Restricted Rights

clause at FAR 52.227-19; or (ii) in similar clauses in other federal

regulations, including the NASA FAR supplement. The contractor or

manufacturer is Barracuda. Customer shall not remove or deface any

restricted rights notice or other legal notice appearing on the Products

or on any packaging or other media associated with the Products.

12. Confidential Information.

12.1. Definition. “Confidential Information” refers to the following

information disclosed by one party (“ Discloser”) to the other

(“Recipient”): (a) any document Discloser marks as “Confidential” or

“Proprietary”; (b) any information Discloser orally designates as being

“Confidential” at the time of disclosure, or which given the

circumstances of the disclosure and the nature of the information

would reasonably be considered confidential; (c) the non-public

features and functions of the Products, Barracuda’s price lists,

technology, trade secrets, marketing strategies, customer lists, mail

lists and information concerning the design or methods of manufacture

of the Products, for which Barracuda is Discloser; (d) this Agreement;

and (e) any other nonpublic, sensitive information disclosed by

Discloser. Notwithstanding the foregoing, Confidential Information

does not include information that: (i) is in Recipient’s possession at the

time of disclosure and not in violation of any confidentiality obligations;

(ii) becomes known publicly, before or after disclosure, other than as a

result of Recipient’s improper action or inaction; or (iii) is approved for

release in writing by Discloser.

12.2. Maintenance of Confidentiality. Each party agrees that it shall: (i)

take reasonable measures to protect the Confidential Information by

using the same degree of care, but no less than a reasonable degree

of care, to prevent the unauthorized use, dissemination or publication

of the Confidential Information as the Recipient uses to protect its own

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confidential information of a similar nature; (ii) limit disclosure to those

persons within Recipient’s organization who have a clear and welldefined

“need to know” and who have previously agreed in writing to

obligations at least as stringent as the provisions hereof, either prior to

receipt of Confidential Information as a condition of their employment

or in order to obtain the Confidential Information; (iii) not copy, reverse

engineer, disassemble, create any works from, or decompile any

prototypes, Products or other tangible objects which embody the other

party’s Confidential Information and/or which are provided to the party

hereunder; and (iv) comply with, and obtain all required authorizations

arising from, all U.S. and other applicable export control laws or

regulations. Confidential Information shall not be used or reproduced

in any form except as required to accomplish the purposes and intent

of an Order or Statement of Work. Any reproduction of Confidential

Information shall be the property of Discloser and shall contain all

notices of confidentiality contained on the original Confidential

Information.

12.3. Exceptions. The parties agree that the foregoing shall not apply

to any information that Recipient can prove, through written evidence:

(i) is or becomes publicly known and made generally available through

no improper action or inaction of Recipient; (ii) was already in its

possession or known by it prior to disclosure by Discloser to Recipient;

(iii) is independently developed by Recipient without use of, or

reference to, any of Discloser’s Confidential Information; or (iv) was

rightfully disclosed to it by, or obtained from, a third party without an

obligation of confidentiality. Recipient may make disclosures required

by law or court order provided that Recipient: (a) uses diligent efforts

to limit disclosure and to obtain, if possible, confidential treatment or a

protective order; (b) has, to the extent legally permissible, given

prompt advance notice to Discloser of such required disclosure.

12.4. Injunction. Recipient agrees that breach of this Section 12 would

cause Discloser irreparable injury, for which monetary damages would

not provide adequate compensation, and that in addition to any other

remedy, Discloser will be entitled to seek injunctive relief against such

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breach or threatened breach, without proving actual damage or

posting a bond or other security.

12.5. Return of Confidential Information. With respect to each item of

Confidential Information, the obligations of Section 12.2 (“Maintenance

of Confidentiality”) will terminate five (5) years after the date of

disclosure. Upon termination of this Agreement, Recipient shall return

all copies of Confidential Information to Discloser or certify, in writing,

the destruction thereof. Where permissible by law, Recipient may

retain one copy of all written materials returned to provide an archive

record of the disclosure, which remains subject to the confidentiality

terms of this Section 12.

12.6. Retention of Rights. This Agreement does not transfer ownership

of Confidential Information or grant a license thereto. Discloser will

retain all right, title and interest in and to all of its Confidential

Information.

12.7. Collection of Customer Data. Customer agrees to allow

Barracuda to collect Customer Data from its Products in order to

enhance its security products and to optimize and monitor the

performance of the Product. Customer Data will be collected

electronically and automatically. Customer Data will be kept private

and will only be reported by Barracuda in the aggregate.

13. Term, Termination, and Survival.

13.1. Term. This Agreement will become effective on the Effective

Date and will continue in effect for such time as Customer maintains

use or possession of Products.

13.2. Termination for Cause. Either party may terminate this

Agreement upon written notice of a material breach by the other party

subject to a thirty (30) day cure period (“Cure Period”). If the breaching

party has failed to cure the breach within the Cure Period after receipt

by the breaching party of written notice of such breach, the

non-breaching party may terminate this Agreement. This Agreement

may be automatically terminated by Barracuda in the event Customer

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has breached any license restriction and, in Barracuda’s

determination, that breach cannot be adequately cured within the Cure

Period.

13.3. Support Services. Support Services will begin on the date of

Delivery of the Products and will continue in effect for the duration of

the Support Term. Support Services will automatically renew at the

end of any Support Term, at the then-current price, for an additional

period equal to the length of the prior Support Term. Either party may

provide notification of its intention to not renew at least sixty (60) days

prior to the expiration of the then-current Support Term. Customer

may terminate Support at any time, for its convenience, on thirty (30)

days’ prior written notice to Barracuda; provided, however, that no

refund shall be owed and Customer is obligated to pay any remaining

Fees owing for the remainder of the then-current Support Term within

thirty (30) days of the effective date of the termination.

13.4. Subscriptions. The term of each Subscription will begin on the

date of Delivery of the Products and will continue in effect for the

duration of the Subscription Term. Subscriptions will automatically

renew at the end of any Subscription Term, at the then-current price,

for an additional period equal to the length of the prior Subscription

Term. Either party may provide notification of its intention to not renew

at least sixty (60) days prior to the expiration of the then-current

Subscription Term. Customer may terminate a Subscription at any

time, for its convenience, on thirty (30) days’ prior written notice to

Barracuda; provided, however, that no refund shall be owed and

Customer is obligated to pay any remaining Fees owing for the

remainder of the then-current Subscription Term within thirty (30) days

of the effective date of the termination.

13.5. Hosted Services. The term of each Hosted Service will begin on

the date of Delivery and will continue in effect for the duration of the

Hosted Service Term. Hosted Services will automatically renew at the

end of any Hosted Service Term, at the then-current price, for an

additional period equal to the length of the prior Hosted Service Term.

Either party may provide notification of its intention to not renew at

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least sixty (60) days prior to the expiration of the then-current Hosted

Service Term. Customer may terminate a Hosted Service at any time,

for its convenience, on thirty (30) days’ prior written notice to

Barracuda; provided, however, that no refund shall be owed and

Customer is obligated to pay any remaining Fees owing for the

remainder of the then-current Hosted Service Term within thirty (30)

days of the effective date of the termination.

13.6. Professional Services; Statements of Work. The term of each

SOW will be as set forth in the applicable SOW. If no term is

expressed in a SOW, then the term of that SOW will begin upon

commencement of the Professional Services and will continue until the

Professional Services described in that SOW are complete or the

SOW is earlier terminated as set forth herein. Unless otherwise stated

in a SOW, Customer may terminate a SOW at any time for its

convenience by providing at least thirty (30) days’ prior written notice

to Barracuda; provided, however, that no refund will be owed and

Customer is obligated to pay any amounts owing for Professional

Services and Deliverables provided or performed under that SOW up

to and including the date of termination.

13.7. Effect of Termination. Except for termination of this Agreement

by Barracuda for Customer’s breach, no termination of this Agreement

shall impact any active Subscription, Hosted Service, Support

Services or SOW that extends beyond such termination, and this

Agreement shall continue to govern and be effective until expiration or

termination of such Subscription, Hosted Service, Support Services or

SOW. The provisions of Section 4 (“Payment Terms”), Section 10

(“Waiver of Consequential Damages and Limitation of Liability”),

Section 11 (“Export and Compliance with Laws”), Section 12

(“Confidential Information”), Section 14 (“Governing Law, Venue and

Dispute Resolution”), and Schedule 2 (“Limited Warranty”) and any

other terms which by their nature should survive termination shall

survive termination of this Agreement.

14. Governing Law, Venue and Dispute Resolution.

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14.1. GOVERNING LAW AND VENUE. THESE TERMS AND THE

USE AND PROVISION OF PRODUCTS WILL BE GOVERNED

SOLELY BY THE LAWS OF THE STATE OF CALIFORNIA,

WITHOUT REFERENCE TO: (A) ANY CONFLICTS OF LAW

PRINCIPLES THAT WOULD APPLY THE SUBSTANTIVE LAWS OF

ANOTHER JURISDICTION TO THE PARTIES’ RIGHTS OR

OBLIGATIONS; (B) THE 1980 UNITED NATIONS CONVENTION ON

CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS; OR

THE PERSONAL AND EXCLUSIVE JURISDICTION OF THE

FEDERAL AND STATE COURTS IN SANTA CLARA COUNTY,

CALIFORNIA.

14.2. DISPUTE RESOLUTION. IF CUSTOMER LIVES IN THE

UNITED STATES, THIS SECTION CONTAINS A BINDING

ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IT

AFFECTS CUSTOMER’S RIGHTS REGARDING HOW TO RESOLVE

ANY DISPUTE CUSTOMER MAY HAVE WITH BARRACUDA.

PLEASE READ IT CAREFULLY.

The parties will attempt to resolve any claim, dispute or controversy

(whether in contract, tort or otherwise) against Barracuda, its agents,

employees, successors, assigns or affiliates (collectively for purposes

of this paragraph, “Barracuda”) arising out of or relating to this

Agreement, the Barracuda Materials, Barracuda advertising, or any

related purchase (a “Dispute”) through face to face negotiation with

persons fully authorized to resolve the Dispute or through mediation

utilizing a mutually agreeable mediator, rather than through litigation. If

the parties are unable to resolve the Dispute through negotiation or

mediation within a reasonable time after written notice from one party

to the other that a Dispute exists, the Dispute will be settled by binding

arbitration in accordance with the then current CPR Rules for Non-

Administered Arbitration. The Arbitration will be conducted before one

(1) independent and impartial arbitrator. The arbitration hearing shall

take place in Cupertino, California and will be governed by the United

States Federal Arbitration Act to the exclusion of any inconsistent

state laws. The arbitrator shall base his or her award on the terms of

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this Agreement and will follow the law and judicial precedents that a

United States District Court Judge sitting in the county of Santa Clara,

California would apply to the Dispute. The arbitrator shall render his or

her award in writing and will include the findings of fact and conclusion

of law upon which his or her award is based. Judgment upon the

arbitration award may be entered by any court of competent

jurisdiction. The existence, content and results of any negotiation,

mediation or arbitration will be treated as confidential. Notwithstanding

the foregoing, either party will have the right to obtain from a court of

competent jurisdiction a temporary restraining order, preliminary

injunction or other equitable relief to preserve the status quo or

prevent irreparable harm, although the merits of the underlying

Dispute will be resolved in accordance with this paragraph.

THE PARTIES AGREE TO ARBITRATE SOLELY ON AN

INDIVIDUAL BASIS, AND THAT THIS AGREEMENT DOES NOT

PERMIT CLASS ARBITRATION OR ANY CLAIMS BROUGHT AS A

PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR

REPRESENTATIVE ARBITRATION PROCEEDING. THE ARBITRAL

TRIBUNAL MAY NOT CONSOLIDATE MORE THAN ONE

PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER

ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.

15. Permission to Use Logo. Customer grants Barracuda permission

to use Customer’s name and/or logo on the Barracuda website, or any

other marketing material when referring to Customer. Customer will

retain all title and rights in its name and logos.

16. Changes to Products. Barracuda reserves the right at any time to

modify, suspend or discontinue providing the Products or any part

thereof and to alter prices, features, Specifications, capabilities,

functions, licensing terms, release dates, general availability or other

characteristics of any future releases in its sole discretion, without

prior notice.

17. Relationship of the Parties. The parties intend that the

relationship created between them by virtue of this Agreement shall be

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that of an independent contractor, and nothing herein shall be

construed to create an agency, joint venture, partnership or other form

of business association between them. Barracuda and its agents,

employees and servants shall not be deemed to be an employee,

agent or servant of Customer or its affiliated entities, if any. Barracuda

is not to be considered an agent or employee of Customer for any

purpose, and none of the benefits provided by Customer or its

employees are available to Barracuda or Barracuda’s employees,

agents or servants. Barracuda shall be solely and entirely responsible

for Barracuda’s acts and for the acts of Barracuda’s agents,

employees, servants and subcontractors during the performance of

this Agreement.

18. Construction. The language used in this Agreement will be

deemed to be the language chosen by the parties to express their

mutual intent, and this Agreement will not be construed in favor of or

against either party by reason of authorship. The headings herein are

for convenience only, do not constitute a part of this Agreement and

shall not be deemed to limit or affect any of the provisions hereof.

19. Force Majeure. Except with respect to payment of Fees, neither

party shall be liable for any failure to timely perform any of its

obligations under this Agreement if such failure is caused by the

occurrence of any event beyond the reasonable control of such party,

including, without limitation, fire, flood, strikes, hurricanes, and other

industrial disputes, failure of raw material, failure of transport,

accidents, wars, riots, insurrections, acts of God or orders of any

government department or agency.

20. Severability. In the event that a provision of this Agreement is

held to be invalid or otherwise unenforceable, such provision will be

interpreted to fulfill its intended purpose to the maximum extent

permitted by applicable law, and the remaining provisions of this

Agreement will continue in full force and effect.

21. Notices. Barracuda may send notices pursuant to this Agreement

to Customer’s email contact points provided by Customer, and such

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notices will be deemed received 24 hours after they are sent.

Customer may send notices pursuant to this Agreement to Barracuda

at 3175 South Winchester Blvd., Campbell, CA 95008, Attn: Legal

Department, and such notices will be deemed received 72 hours after

they are sent.

22. Entire Agreement, Waiver and Assignment.

22.1. Entire Agreement. This Agreement constitutes the entire

agreement between the parties with respect to the subject matter

hereof and supersedes and replaces all prior or contemporaneous

understandings or agreements, written or oral. If any term or condition

in this Agreement conflicts with any term or condition in any Order,

invoice or similar supplementary document submitted by Customer,

the term or condition set out in this Agreement shall prevail. Unless

otherwise expressly and mutually agreed in writing by the parties,

under no circumstances shall any Order, invoice or similar

supplementary document issued by Customer in connection with the

Products supersede the terms of this Agreement. Any such

documentation shall be solely for Customer’s internal business

purposes, and in no event shall any terms and conditions, or other

charges of any such document modify or become a part of this

Agreement or become binding on Barracuda, even if signed by

Barracuda.

22.2. Waiver. Neither party will be deemed to have waived any of its

rights under this Agreement by lapse of time or by any statement or

representation other than by an authorized representative in an explicit

written waiver. No waiver of a breach of this Agreement will constitute

a waiver of any other breach of this Agreement.

22.3. Assignment. Customer may not assign or transfer any of its

rights or obligations under this Agreement without Barracuda’s prior

written consent. Barracuda may freely assign its rights and obligations

under this Agreement. Any attempted assignment or transfer in

violation of the foregoing will be void. Except to the extent forbidden in

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this section, this Agreement will be binding upon and inure to the

benefit of the parties’ respective successors and assigns.

Synology –

IMPORTANT–READ CAREFULLY: THIS END USER LICENSE AGREEMENT (“EULA”) IS A

LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR A LEGAL ENTITY) AND

SYNOLOGY, INC. (“SYNOLOGY”) FOR THE SYNOLOGY SOFTWARE INSTALLED ONTO THE

SYNOLOGY PRODUCT PUCHASED BY YOU (THE “PRODUCT”), OR LEGALLY

DOWNLOADED FROM WWW.SYNOLOGY.COM, OR ANY OTHER CHANNEL PROVIDED BY

SYNOLOGY ( “SOFTWARE”).

YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY USING THE PRODUCTS

CONTAINING THE SOFTWARE, INSTALLING THE SOFTWARE ONTO THE PRODUCTS OR

DEVICE CONNECTED TO THE PRODUCTS. IF YOU DO NOT AGREE TO THE TERMS OF

THIS EULA, DO NOT USETHE PRODUCTS CONTAINING THE SOFTWAREOR DOWNLOAD

THE SOFTWARE FROM WWW.SYNOLOGY.COM, OR ANY OTHER CHANNEL PROVIDED BY

SYNOLOGY.INSTEAD, YOU MAY RETURN THE PRODUCT TO THE RESELLER WHERE YOU

PURCHASED IT FOR A REFUND IN ACCORDANCE WITH THE RESELLER’S APPLICABLE

RETURN POLICY.

Section 1. Limited Software License. Subject to the terms and conditions of this

EULA, Synology grants you a limited, non-exclusive, non-transferable, personal license

to install, run and use one copy of the Software loaded on the Product or on your

device connected to the Product solely relating to your authorized use of the Product.

Section 2. Documentation. You may make and use a reasonable number of copies of

any documentation provided with the Software; provided that such copies will only be

used for internal business purposes and are not to be republished or redistributed

(either in hard copy or electronic form) to any third party.

Section 3. Backup. You may make a reasonable number of copies of the Software for

backup and archival purposes only.

Section 4. Updates. Any software provided to you by Synology or made available on

the Synology website at www.synology.com (“Website”) or any other channel provided

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by Synology that updates or supplements the original Software is governed by this

EULA unless separate license terms are provided with such updates or supplements, in

which case, such separate terms will govern.

Section 5. License Limitations. The license set forth in Sections 1, 2 and 3 applies only

to the extent that you have ordered and paid for the Product and states the entirety of

your rights with respect to the Software. Synology reserves all rights not expressly

granted to you in this EULA. Without limiting the foregoing, you shall not authorize or

permit any third party to: (a) use the Software for any purpose other than that in

connection with the Product; (b) license, distribute, lease, rent, lend, transfer, assign or

otherwise dispose of the Software; (c) reverse engineer, decompile, disassemble or

attempt to discover the source code of or any trade secrets related to the Software,

except and only to the extent that such conduct is expressly permitted by applicable

law notwithstanding this limitation; (d) adapt, modify, alter, translate or create any

derivative works of the Software; (e) remove, alter or obscure any copyright notice or

other proprietary rights notice on the Software or Product; or (f) circumvent or attempt

to circumvent any methods employed by Synology to control access to the

components, features or functions of the Product or Software. Subject to the

limitations specified in this Section 5, you are not prohibited from providing any

services hosted by Synology NAS server to any third party for commercial purpose.

Section 6. Open Source. The Software may contain components licensed to Synology

under the GNU General Public License (“GPL Components”), currently available

at http://www.gnu.org/licenses/gpl.html. The terms of the GPL will control solely with

respect to the GPL Components to the extent that this EULA conflicts with the

requirements of the GPL with respect to your use of the GPL Components, and, in such

event, you agree to be bound by the GPL with respect to your use of such components.

Section 7. Audit.Synology will have the right to audit your compliance with the terms

of this EULA. You agree to grant Synology a right to access to your facilities, equipment,

books, records and documents and to otherwise reasonably cooperate with Synology in

order to facilitate any such audit by Synology or its agent authorized by Synology.

Section 8. Ownership. The Software is a valuable property of Synology and its

licensors, protected by copyright and other intellectual property laws and treaties.

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Synology or its licensors own all rights, titles and interests in and to the Software,

including but not limited to copyright and any other intellectual property rights.

Section 9. Limited Warranty.Synology provides a limited warrant that the Software

will substantially conform to Synology’s published specifications for the Software, if any,

or otherwise set forth on the Website, for a period required by your local law. Synology

will use commercially reasonable efforts to, in Synology’s sole discretion, either correct

any such nonconformity in the Software or replace any Software that fails to comply

with the foregoing warranty, provided that you give Synology written notice of such

noncompliance within the warranty period. The foregoing warranty does not apply to

any noncompliance resulting from any: (w) use, reproduction, distribution or disclosure

not in accordance with this EULA; (x) any customization, modification or other

alteration of the Software by anyone other than Synology; (y) combination of the

Software with any product, services or other items provided by anyone other than

Synology; or (z) your failure to comply with this EULA.

Section 10. Support. During the period specified in the Section 9, Synology will make

available to you the support services. Following the expiration of the applicable period,

support for Software may be available from Synology upon written request.

Section 11. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE

SOFTWARE IS PROVIDED “AS IS” AND WITH ALL FAULTS. SYNOLOGY AND ITS SUPPLIERS

HEREBY DISCLAIM ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY,

ARISING BY LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED

WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE,

TITLE AND NONINFRINGEMENT, WITH REGARD TO THE SOFTWARE. WITHOUT LIMITING

THE FOREGOING, SYNOLOGY DOES NOT WARRANT THAT THE SOFTWARE WILL BE FREE

OF BUGS, ERRORS, VIRUSES OR OTHER DEFECTS.

Section 12. Disclaimer of Certain Damages. IN NO EVENT WILL SYNOLOGY OR ITS

LICENSORS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE,

CONSEQUENTIAL OR SIMILAR DAMAGES OR LIABILITIES WHATSOEVER (INCLUDING,

BUT NOT LIMITED TO LOSS OF DATA, INFORMATION, REVENUE, PROFIT OR BUSINESS)

ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SOFTWARE

OR OTHERWISE UNDER OR IN CONNECTION WITH THIS EULA OR THE SOFTWARE,

WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR

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OTHER THEORY EVEN IF SYNOLOGY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH

DAMAGES.

Section 13. Limitation of Liability. SYNOLOGY’S AND ITS SUPPLIERS’ LIABILITY

ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SOFTWARE

OR OTHERWISE UNDER OR IN CONNECTION WITH THIS EULA OR THE SOFTWARE IS

LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE PRODUCT REGARDLESS OF

THE AMOUNT OF DAMAGES YOU MAY INCUR AND WHETHER BASED ON CONTRACT,

TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY. The foregoing

disclaimer of warranties, disclaimer of certain damages and limitation of liability will

apply to the maximum extent permitted by applicable law. The laws of some

states/jurisdictions do not allow the exclusion of implied warranties or the exclusion or

limitation of certain damages. To the extent that those laws apply to this EULA, the

exclusions and limitations set forth above may not apply to you.

Section 14. Export Restrictions. You acknowledge that the Software is subject to U.S.

export restrictions. You agree to comply with all applicable laws and regulations that

apply to the Software, including without limitation the U.S. Export Administration

Regulations.

Section 15. Termination. Without prejudice to any other rights, Synology may

terminate this EULA if you do not abide by the terms and conditions contained herein.

In such event, you must cease use of the Software and destroy all copies of the

Software and all of its component parts.

Section 16. Assignment. You may not transfer or assign your rights under this EULA to

any third party, except for that pre-installed in the Products. Any such transfer or

assignment in violation of the foregoing restriction will be void.

Section 17. Applicable Law. Unless expressly prohibited by local law, this EULA is

governed by and construed in accordance with the laws of the country, in accordance

with which Synology Inc. was organized without regard to any conflict of law principles

to the contrary.

Section 18. Dispute Resolution. Any dispute, controversy or claim arising out of or

relating to this EULA will be resolved exclusively and finally by arbitration conducted by

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three neutral arbitrators in accordance with the procedures of the Arbitration Law and

related enforcement rules of the country in which Synology Inc. was organized. In such

cases, the arbitration will be limited solely to the dispute between you and Synology.

The arbitration, or any portion of it, will not be consolidated with any other arbitration

and will not be conducted on a class-wide or class action basis. The arbitration shall

take place in Taipei and the arbitration proceedings shall be conducted in English or, if

both parties so agree, in Mandarin Chinese. The arbitration award shall be final and

binding on the parties and may be enforced in any court having jurisdiction. You

understand that, in the absence of this provision, you would have had a right to litigate

any such dispute, controversy or claim in a court, including the right to litigate claims

on a class-wide or class-action basis, and you expressly and knowingly waives those

rights and agrees to resolve any disputes through binding arbitration in accordance

with the provisions of this Section 18. Nothing in this Section shall be deemed to

prohibit or restrict Synology from seeking injunctive relief or seeking such other rights

and remedies as it may have at law or equity for any actual or threatened breach of any

provision of this EULA relating to Synology’s intellectual property rights.

Section 19. Attorneys’ Fees. In any arbitration, mediation, or other legal action or

proceeding to enforce rights or remedies under this EULA, the prevailing party will be

entitled to recover, in addition to any other relief to which it may be entitled, costs and

reasonable attorneys’ fees.

Section 20. Severability. If any provision of this EULA is held by a court of competent

jurisdiction to be invalid, illegal, or unenforceable, the remainder of this EULA will

remain in full force and effect.

Section 21. Entire Agreement. This EULA sets forth the entire agreement of Synology

and you with respect to the Software and the subject matter hereof and supersedes all

prior and contemporaneous understandings and agreements whether written or oral.

No amendment, modification or waiver of any of the provisions of this EULA will be

valid unless set forth in a written instrument signed by the party to be bound thereby.

Infrascale –

This Customer Agreement is entered into by Infrascale, Inc. (“Infrascale”) and the

person or entity agreeing to these terms (“You” or “Your”) and consists of (a) the

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terms contained herein, (b) the Additional Terms (as defined below), and (c) any

Infrascale Order (as defined below) (collectively, this “Agreement”). This Agreement

governs Your use of the Infrascale Service Offerings (as defined below). BY

EXECUTING AN INFRASCALE ORDER THAT REFERENCES THIS AGREEMENT, USING

INFRASCALE SERVICE OFFERINGS OR OTHERWISE INDICATING YOUR ACCEPTANCE

OF THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU HAVE

READ AND UNDERSTAND THIS AGREEMENT, YOU AGREE TO THE TERMS AND

CONDITIONS OF THIS AGREEMENT AND ARE BOUND BY THIS AGREEMENT. IF YOU

ARE AN INDIVIDUAL ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY

OR OTHER LEGAL ENTITY, (A) YOU REPRESENT AND WARRANT THAT YOU HAVE FULL

LEGAL AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, AND (B) YOU

AGREE, ON BEHALF OF SUCH ENTITY, TO THE TERMS AND CONDITIONS OF THIS

AGREEMENT. IF YOU DO NOT HAVE FULL LEGAL AUTHORITY TO BIND SUCH ENTITY

OR DO NOT ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO

NOT EXECUTE AN INFRASCALE ORDER, CREATE AN ACCOUNT, USE THE INFRASCALE

SERVICE OFFERINGS OR OTHERWISE INDICATE YOUR ACCEPTANCE OF THIS

AGREEMENT.

1. Definitions.

1.1. “Account Information” means information about You and Users that You

provide to Infrascale in connection with the creation or administration of Your

Account, and may include names, usernames, phone numbers, email addresses

and billing information associated with Your Account.

1.2. “Additional Terms” means the following terms and policies: Infrascale Terms of

Service, Privacy Policy, Service Level Agreement, Overage Billing Policy, Hardware

Warranty Policy (to the extent applicable), Statement of Support, Third Party

Terms and any other terms and conditions disclosed to You in an Order, if

applicable, through Your online account (“Account”) or in connection with accessing

any Services, each of which are hereby incorporated by reference.

1.3. “Brand Features” means the trade names, trademarks, service marks, logos,

domain names, and other distinctive brand features of each party, respectively, as

secured by such party from time to time.

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1.4. “Confidential Information” means all nonpublic information that one party or

its affiliate (the “Discloser”) discloses to the other party (the “Recipient”) under this

Agreement that is designated as confidential or that, given the nature of the

information or circumstances surrounding its disclosure, reasonably should be

understood to be confidential. Notwithstanding the foregoing, Infrascale

Confidential Information shall include (a) nonpublic information relating to the

technology, customers, pricing, product plans, marketing activities, finances and

other business affairs of Infrascale, its affiliates, suppliers, or licensors, (b) thirdparty

information that Infrascale is obligated to keep confidential, and (c) the

nature, content and existence of any discussions or negotiations between You and

Infrascale or its affiliates. Confidential Information does not include any information

that (i) is or becomes publicly available without breach of this Agreement, (ii) was

known to the Recipient at the time of the Recipient’s receipt hereunder, (iii) is

received from a third party who did not acquire or disclose the same by a wrongful

or tortious act, or (iv) is independently developed by the Recipient.

1.5. “Content” means software, data, text, files, audio, video or images.

1.6. “Documentation” means Services support material, if any, made available by

or on behalf of Infrascale, which may include product guides, manuals,

specifications, and knowledgebase articles, each as may be updated from time to

time.

1.7. “Fees” means (a) applicable fees for each Service as set forth in the Order or, if

an Order is not executed or the fees are not set forth in the Order, as set forth in

the then-current Infrascale price list, (b) applicable fees for Hardware, if any, (c)

applicable support fees, (d) transportation fees and related charges, (e) applicable

overage fees pursuant to the Overage Billing Policy, and (f) all additional fees as

mutually agreed upon by the parties.

1.8. “Hardware” means all computer and computer-related physical equipment, if

any, provided by Infrascale for use with the Services and/or Software.

1.9. “Indirect Taxes” means applicable taxes and duties, including, without

limitation, VAT, service tax, GST, excise taxes, sales and transactions taxes, and

gross receipts tax.

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1.10. “Infrascale Content” means Content made available by or on behalf of

Infrascale in connection with the Services or on the Infrascale website at

http://infrascale.com (the “Site”) to allow access and use of the Services, including

without limitation APIs, Documentation, Creatives, software libraries, templates,

and other related technology.

1.11. “Losses” means any claims, damages, losses, liabilities, costs, and expenses

(including reasonable attorneys’ fees).

1.12 “Order” means (a) a written quote or other ordering document prepared by

Infrascale and either (i) executed by Your authorized representative, (ii) referenced

in a purchase order issued by You, or (iii) otherwise agreed to by Your authorized

representative; or (b) Your or a User’s registration for and/or enablement of the

applicable Services via Your Infrascale Dashboard. Your acceptance of a quote or

ordering document or registration for and enablement of Services in accordance

with any of the foregoing shall constitute Your execution of the Order for purposes

of this Agreement.

1.13. “Policies” means the Privacy Policy, Website Terms of Use, Terms of Service,

all restrictions described in the Infrascale Content, and any other policy or terms

referenced in or incorporated into this Agreement.

1.14. “Service” means each of the services made available by or on behalf of

Infrascale, including those services described in the Terms of Service. Services do

not include any Third-Party Product.

1.15. “Service Offerings” means the Services, Infrascale Content, Software,

Infrascale Brand Features, Hardware, and any other product or service provided by

or on behalf of Infrascale under this Agreement. Service Offerings do not include

any Third-Party Product.

1.16. “Service Term” or “Order Term” means, with respect to each subscription for

any Service, the Initial Service Term (as defined below) plus any Renewal Term(s) (as

defined below).

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1.17. “Software” means the software, if any, identified in an Order, as well as other

software made available to You hereunder by or on behalf of Infrascale, including

any applications, utility programs, and interfaces.

1.18. “Support” means the support services described in the Support Policies,

which support services are provided by or on behalf of Infrascale for the applicable

Services purchased by You.

1.19. “Support Policies” means the Service Level Agreement, Hardware Warranty

Policy, Statement of Support and any other support policies for Services located

at infrascale.com/legal.

1.20. “Suspend” or “Suspension” means disabling or limiting access or use of the

Service Offerings.

1.21. “Termination Date” means the effective date of termination provided in

accordance with Section 7, in a written notice from one party to the other.

1.22. “Third-Party Product” means any Content made available to You by any third

party on the Site or in conjunction with the Services, including any non-Infrascalebranded

software and services licensed to You pursuant to Third Party Terms.

Infrascale reserves the right to suspend or terminate any Third-Party Product at any

time. In the event of a conflict between these Terms and any Third Party Terms, the

Third Party Terms will prevail with respect to the Third-Party Product that is the

subject matter of such terms.

1.23. “Trial Service” shall have the meaning ascribed to such term in the Terms of

Service.

1.24. “User” means any individual or entity authorized by You or on Your behalf to

access or use Your Content or the Service Offerings under Your Account.

1.25. “Your Content” means all Content that You or any User (or Infrascale, when

acting on Your instructions) transfers to Infrascale for processing, storage, or

hosting by the Services in connection with Your Account. Your Content does not

include Account Information.

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2. Your Rights.

2.1. Training. Following Your purchase of a subscription to a Service, Infrascale will

provide You initial technical training with respect to such Service via webinar or as

otherwise agreed upon by Infrascale. After the initial technical training has been

completed, any further training may be provided by Infrascale for a fee.

2.2. Support. Subject to the terms and conditions of this Agreement, Infrascale will

provide Support to You for the Services in accordance with the then-current

Support Policy.

2.3. Advertising and Marketing. Infrascale may provide You access to the

Infrascale “Partner Resource Center”, which contains advertising and other creative

materials that promote the Services. Such materials may include Infrascale Brand

Features, Documentation, graphics, download buttons, banners, and related

materials (individually and collectively, “Creatives”). Subject to the terms and

conditions of this Agreement, You may use, reproduce, modify and/or distribute the

Creatives solely in connection with Your promotion of Services and strictly in

accordance with guidelines (if any) included in the Partner Resource Center. You

agree that You shall not modify, remove, or otherwise affect the Infrascale Brand

Features. You represent and warrant that any modifications made to the Creatives

by or on Your behalf shall not (a) infringe or misappropriate the intellectual

property rights of Infrascale or any third party, (b) portray the Service Offerings or

Infrascale in a false light, (c) contain any inaccurate statements or

misrepresentations regarding the Service Offerings or Infrascale, or (d) contain any

defamatory, scandalous, libelous, or unlawful matter.

3. Your Responsibilities.

3.1. Users. You are responsible for providing any necessary notices to Users and

for obtaining any legally required consents from Users concerning their use of the

Service Offerings. You will ensure that all Users comply with all terms and

conditions of this Agreement and that the terms of Your agreement with each User

are consistent with this Agreement. You will be deemed to have taken any action

that You permit, assist, or facilitate any person or entity to take related to this

Agreement, Your Content or use of the Service Offerings. You are responsible for

Users’ use of Your Content and the Service Offerings and are liable for Users’ acts

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and omissions. If You become aware of any violation by any User, You will

immediately suspend that User’s access to Your Content and the Service Offerings.

Infrascale is not obligated to provide Support to Users unless Infrascale has a

separate agreement with You or a User obligating us to provide such Support.

3.2. Representations and Warranties. You represent and warrant that (a) You

have full capacity, right and authority to enter into this Agreement, (b) You will

comply with all applicable laws in Your performance of this Agreement, (c) any

modifications of the Service Offerings made by You or on Your behalf shall not

infringe or misappropriate any intellectual property, proprietary, or other rights of

any third party, where such infringement or misappropriation would not have

occurred but for such modification(s), and (d) Your entry into this Agreement and

performance of Your obligations do not breach any of Your obligations to any third

party, or breach any contract, agreement, or order by which You are bound.

3.3. Insurance. For the Term of this Agreement, You shall maintain commercial

general liability insurance with limits of at least $1,000,000 per occurrence and an

annual aggregate of at least $2,000,000. Such insurance may not be changed or

cancelled without at least thirty (30) days’ prior written notice to Infrascale.

3.4. Non-Solicitation of Customers. Infrascale agrees that with respect to each of

Your customers who (a) purchases a subscription to an Infrascale Service from You,

and (b) continues to maintain an active subscription to such Service through You

(each, an “Infrascale Service Customer”), Infrascale will not knowingly sell any

Services to such Infrascale Service Customer other than through You; provided,

however, the foregoing obligation is strictly subject to Your provision of a current

and accurate Customer List (as defined below) to Infrascale in which the applicable

Infrascale Service Customer has been identified. The foregoing Infrascale obligation

shall not apply if (i) Infrascale was already in a contractual relationship with, or in

active negotiations towards a contractual relationship with, such Infrascale Service

Customer prior to You furnishing a Customer List with such Infrascale Service

Customer identified, or (ii) You are in breach of any term of this Agreement. A

“Customer List” shall mean a written notice to Infrascale that identifies those

current Infrascale Service Customers who satisfy the conditions described in (a) and

(b) above. For the avoidance of doubt, You are not required to provide a Customer

List to Infrascale, however the obligation of Infrascale set forth above shall apply

only with respect to those Infrascale Service Customers accurately identified on a

current Customer List. Except as expressly set forth in this Section, Infrascale

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retains the absolute and unrestricted right to market, distribute, sell and otherwise

transact in the Services through any third party or directly with any customer by

itself, without Your involvement or participation or any obligation to You in respect

thereof (including, without limitation, any payment obligation).

3.5. Hardware.

(a) Delivery; Loss. If You are entitled to receive Hardware for use in connection with

Infrascale Disaster Recovery (“IDR”) or Infrascale Backup & Disaster Recovery

(“IBDR”) , delivery of the Hardware shall be made DAP (Delivered at Place,

Incoterms® 2020) at Your designated facility (the “Designated Facility”) in

accordance with the delivery schedule mutually agreed upon by the parties. Unless

expressly agreed to otherwise, You are responsible for and shall pay all

transportation fees as specified in the Order, as well as all duty, customs clearance

and other charges related to delivery to an international destination. You will

ensure that You have all necessary rights, certifications, and licenses for the

delivery, installation, maintenance, use, and removal of the Hardware at the

Designated Facility. From the time the Hardware is delivered to Your Designated

Facility until its return to us, You are responsible for any loss, theft, damage to, or

destruction of the Hardware, except to the extent caused by us. If You breach these

Terms, we may terminate Your and Your User’s right to use the Hardware and we

may remove the Hardware.

(b) Title. Except as otherwise expressly agreed in writing by us, (i) we will make

Hardware available to You to support Your or Your User’s use of the IDR or IBDR

Service, (ii) Infrascale and/or its suppliers are the owner of the Hardware and will

retain title thereto; and (iii) You will not, and will not purport to, assign, grant, or

transfer the Hardware or any interest in the Hardware to any individual or entity,

and any such purported assignment, grant, or transfer is void.

the Hardware on a mutually agreeable date. Except as expressly set forth in an

Order, all branding requests, integration, API development and non-standard

deployments which require any custom engineering work by us will be quoted

separately and subject to a separate agreement between You and us.

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(d) Facility Assessment. You will ensure that the Designated Facility at which the

Hardware is located meets the minimum requirements reasonably necessary to

support the installation, maintenance, use, and removal of the Hardware.

(e) Access to Hardware. You will ensure that personnel designated by Infrascale are

provided prompt and reasonable access to the Designated Facility as necessary to

deliver, install, inspect, maintain, and remove the Hardware. You will not require the

designated personnel to sign, accept, or otherwise agree to any documentation as a

condition of accessing the Designated Facility (other than a standard visitor’s log),

and You agree that the terms of any such documentation are void even if signed by

the designated personnel. You will ensure that no one modifies, alters, reverse

engineers, or tampers with the Hardware, and that no one accesses, moves, or

repairs the Hardware other than (i) personnel designated by us, (ii) as permitted in

writing by us in connection with the maintenance of Hardware, or (iii) as necessary

due to a situation involving imminent injury, damage to property, or an active fire

alarm system. You acknowledge that the Hardware may be equipped with tamper

monitoring.

(f) Services and Security. There are inherent differences between Services running

on Hardware at Your Designated Facility and those Services running at Infrascale

operated facilities, since the Hardware is physically located at the Designated

Facility where You are responsible for physical security and access controls, as well

as all power, networking, and environmental conditions. Due to these differences,

any Infrascale obligations or commitments in these Terms that depend on our

operation of physical security and access controls, or power, networking, or

environmental conditions, do not apply to Hardware or any IDR or IBDR Services

running on Hardware not located at an Infrascale operated facility.

(g) Import/Export. You are responsible for complying with all applicable import, reimport,

export, and re-export control laws with respect to the Hardware and any

included Software, including any applicable license requirements and countryspecific

sanctions programs. You are responsible for serving as the exporter and

importer of record (as applicable) for the Hardware, and You accept that we will not

participate in the export or import procedure.

4. Ordering And Payment Terms.

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4.1. Purchases. You may purchase a subscription for the right to access and use

the Service Offerings by entering into an Order with Infrascale. Purchase of a

subscription to the Service Offerings includes Your right to access applicable

Support during the Service Term.

4.2. Payment. Your right to access and use the Service Offerings is subject to Your

timely payment of Fees. Following each billing period, Infrascale will issue an invoice

to You for Fees due based on (a) Your purchase of Services (for those Services not

provided under a consumption-based license model), (b) Your and Users’ use of

consumption-based Services during the previous billing period, (c) Your and Users’

excess usage of the Services pursuant to the Overage Billing Policy, and (d) any

other fees due hereunder. Overage fees due pursuant to the Overage Billing Policy

will be invoiced in arrears. Payment shall be made by debit card, credit card, or

ACH/direct debit. You authorize Infrascale to charge Your payment method for all

amounts due under this Agreement. If You purchase a multi-year subscription or a

multi-year renewal for any Service, Your purchase is for the full value of all years of

the subscription, even if the required payments are made in installments (e.g.,

monthly or annually). Except as otherwise provided in this Agreement or applicable

law, Your obligation to pay all Fees is non-cancellable and the measurement by

Infrascale of Your and Users’ use of consumption-based Services and excess usage

of any Service is final. All Fees will be paid to Infrascale without setoff or

counterclaim and are non-refundable.

4.3. Delinquent Payments. If any payment is more than thirty (30) days past due

(including if payment is late due to a credit card expiration or chargeback or

insufficient funds), Infrascale may, without limiting any remedies available to it

hereunder and notwithstanding the opportunity to cure set forth in Section 7.2, (a)

Suspend all or part of Your and Users’ use of the Service Offerings until payment is

made current, or (b) immediately terminate this Agreement and/or any specific

Order(s) for breach. Infrascale may charge You interest at the rate of 1.5% per

month (or the highest rate permitted by law, if less) on all late payments. You are

responsible for any and all costs of collection incurred by Infrascale in collecting

such late or past due payments, including reasonable attorney’s fees and litigation

costs.

4.4. Taxes. Each party will be responsible, as required under applicable law, for

identifying and paying all taxes and other governmental fees and charges (and any

penalties, interest, and other additions thereto) that are imposed on that party

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upon or with respect to the transactions and payments under this Agreement. All

Fees payable by You are exclusive of Indirect Taxes. Infrascale may charge and You

will pay applicable Indirect Taxes that Infrascale is legally obligated or authorized to

collect from You. You will provide such information to Infrascale as reasonably

required to determine whether Infrascale is obligated to collect Indirect Taxes from

You. Infrascale will not collect, and You will not pay, any Indirect Tax for which You

furnish us a properly completed exemption certificate or a direct payment permit

certificate for which Infrascale may claim an available exemption from such Indirect

Tax. All payments made by You to Infrascale under this Agreement will be made

free and clear of any deduction or withholding, as may be required by law. If any

such deduction or withholding (including but not limited to cross-border

withholding taxes) is required on any payment, You will pay such additional

amounts as are necessary so that the net amount received by Infrascale is equal to

the amount then due and payable under this Agreement. Infrascale will provide You

with such tax forms as are reasonably requested in order to reduce or eliminate the

amount of any withholding or deduction for taxes in respect of payments made

under this Agreement.

4.5. Invoice Disputes & Refunds. You must submit any invoice disputes prior to

the payment due date. If the parties determine that certain billing inaccuracies are

attributable to Infrascale, Infrascale will not issue a corrected invoice, but will

instead issue a credit memo specifying the incorrect amount in the affected invoice.

If the disputed invoice has not yet been paid, Infrascale will apply the credit memo

amount to the disputed invoice, and You will be responsible for paying the resulting

net balance due on that invoice. To the fullest extent permitted by law, You waive all

claims relating to Fees unless claimed within sixty (60) days after charged (this does

not affect any of Your rights with Your credit card issuer).

4.6. Overages. The Services are subject to usage limits specified in this Agreement,

the Order, and the Overage Billing Policy. You acknowledge that use of the Services

in excess of the usage limits may result in additional fees and agree to pay such

fees in accordance with the Overage Billing Policy.

4.7. Initial Service Term and Renewals. Your subscription will be in effect for the

initial service term identified on the Order or selected in Your Account, as applicable

(the “Initial Service Term”). Your subscription (including subscriptions for

consumption-based services) is auto-renewing, and Your purchase constitutes Your

agreement to the auto-renewal of Your subscription for successive one (1) year

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terms, provided that if the Initial Service Term of Your subscription is monthly, the

subscription shall auto-renew for successive one (1) month terms (each term of a

renewal, the “Renewal Term”). Notwithstanding the foregoing, Infrascale may

impose limits on the number of Renewal Terms for certain subscriptions based on

the age of the Hardware or other factors. You maintain the right to give email notice

of non-renewal to Infrascale at support@infrascale.com at least thirty (30) days

prior to the end of the then-current term. Each consumption model invoice shall

constitute an auto-renewal notice under consumption models. All Orders, including

for renewals, are subject to acceptance by Infrascale in its discretion.

5. Confidential Information.

5.1. Obligations. The Recipient shall maintain the confidentiality of the Discloser’s

Confidential Information with at least the same degree of care that it uses to

protect its own confidential and proprietary information, but no less than a

reasonable degree of care under the circumstances. The Recipient shall not use the

Discloser’s Confidential Information for any purpose except as required or

necessary for performance of this Agreement. Without limiting the foregoing, the

Recipient will not disclose the Discloser’s Confidential Information except to

affiliates, employees, agents, or professional advisors who need to know it and who

have agreed in writing (or in the case of professional advisors are otherwise bound)

to maintain its confidentiality on terms at least as restrictive as those contained

herein. The Recipient will ensure that those people and entities use the Discloser’s

Confidential Information only to exercise rights and fulfill obligations under this

Agreement. The Recipient shall promptly return to the Discloser, or destroy, as the

case may be, the Discloser’s Confidential Information following the termination or

expiration of this Agreement or earlier upon written request of the Discloser.

5.2. Required Disclosure. Notwithstanding any provision to the contrary in this

Agreement, the Recipient may also disclose the Discloser’s Confidential Information

to the extent required by a government body, court of law, or other valid legal

authority provided that the Recipient uses commercially reasonable efforts to: (a)

promptly notify the Discloser in advance of such disclosure, and (b) comply with the

Discloser’s reasonable requests regarding its efforts to oppose the disclosure.

Notwithstanding the foregoing, subsections (a) and (b) above will not apply if the

Recipient determines that complying with (a) and (b) could (i) result in a violation of

the legal order requiring disclosure, and/or (ii) obstruct a governmental

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investigation. As between the parties, You are responsible for responding to all

third-party requests concerning Your and Users’ use of the Service Offerings.

6. Suspension.

6.1. Generally. Infrascale may Suspend Your or any User’s right to access or use all

or any portion of the Service Offerings if Infrascale determines:

(a) Your or any User’s use of the Service Offerings (i) poses a security risk to the

Service Offerings or any third party, (ii) could adversely impact Infrascale systems,

the Service Offerings, or the systems or Content of any other Infrascale customer,

(iii) could subject Infrascale, its affiliates, or any third party to liability, or (iv) could

be fraudulent;

(b) You or any User is in breach of this Agreement, or any User is in breach of the

(d) It is required to Suspend to comply with applicable law;

(e) You have ceased to operate 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; or

(f) Infrascale wishes to Suspend a Trial Service pursuant to the Terms of Service.

Infrascale will eliminate any such Suspension once the circumstances giving rise to

the Suspension have been resolved. At Your request, unless prohibited by

applicable law, Infrascale will notify You of the basis for the Suspension as soon as

is reasonably possible.

6.2. Effect of Suspension. If Infrascale Suspends Your or any User’s right to access

or use all or any portion of the Service Offerings:

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(a) You remain responsible for all Fees and charges You incur during the period of

Suspension; and

(b) You will not be entitled to any service credits under the Service Level Agreement

for any period of Suspension.

7. Term; Termination.

7.1. Term. This Agreement will become effective upon the earlier of (a) Your

execution of an Order, (b) Your or any User’s use of any Service, or (c) when You

indicate Your acceptance of this Agreement (during Account creation or otherwise)

and, unless earlier terminated in accordance with the terms of this Agreement, will

remain in effect until the date on which Your last active subscription to a Service

expires. Any notice of termination of this Agreement by either party to the other

must include a Termination Date that complies with the notice periods in Section

7.2.

7.2. Termination for Cause.

(a) By Either Party. Either party may terminate this Agreement for cause if the other

party is in material breach of this Agreement and, to the extent curable (other than

a default in payment), such material breach remains uncured for a period of thirty

(30) days from receipt of written notice by the other party.

(b) By Infrascale. Infrascale may also terminate this Agreement immediately upon

notice to You for cause (i) if Infrascale has the right to Suspend under Section 6.1(ae),

(ii) if the agreement between Infrascale and a third-party partner who provides

software or other technology Infrascale uses to provide the Service Offerings

expires, terminates, or requires Infrascale to change the way it provides the

software or other technology as part of the Services, or (iii) in order to comply with

applicable law or requests of governmental entities.

7.3. Effect of Termination.

(a) Service Term. Upon expiration or termination of a Service Term:

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(i) all of Your and Users’ rights under the specific Order terminate immediately, and

You and Users will not be able to access Your Content provided in connection with

the specific Order except as expressly set forth in Section 7.3(c);

(ii) You remain responsible for all Fees and charges You have incurred under the

specific Order through the date of expiration or termination of such Order and are

responsible for any Fees and charges You incur during the post-termination period

described in Section 7.3(c); and

(iii) You will immediately obtain possession of all Hardware provided under the

specific Order by or on behalf of Infrascale (whether provided to You or Users) and

return such Hardware, along with all accessories, to Infrascale in the same

condition as that in which it was provided (less reasonable wear and tear). In the

event the Hardware is not immediately returned in the above-described condition,

You agree You shall promptly pay to Infrascale the actual cost of the Hardware less

Depreciation. “Depreciation” shall be calculated by multiplying the actual cost of the

Hardware on the date of delivery by the Decline in Value, where the “Decline in

Value” is equivalent to twenty-five percent (25%) per full year of Your Service Term

for each of the first three (3) years following delivery of such Hardware, not to

exceed seventy-five percent (75%). By way of example only, if Hardware is delivered

on June 1, 2021 and returned to Infrascale on March 1, 2023, the Depreciation for

such Hardware shall be calculated by multiplying the actual cost for such Hardware

by twenty-five percent (25%).

(b) Agreement. Upon termination of this Agreement:

(i) You will immediately return or, if instructed by Infrascale, destroy all Infrascale

Content in Your possession and cause all Users to do the same;

(ii) upon request, each party will return or destroy all Confidential Information of

the other party; and

(iii) the following Sections shall survive termination: Sections 1, 3.2, 3.5 (a-b), 4.2-4.6,

5, 7.3, and 8 through 11.

Agreement for cause, during the forty-five (45) days immediately following

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termination of the specific Order or this Agreement, whichever occurs first (the

“Retrieval Period”), Infrascale will not take action to remove any of Your Content

from the Infrascale systems as a result of the termination and will allow You to

retrieve Your Content from the specific Services; provided, the Retrieval Period for

Infrascale Cloud Application Backup (“ICAB”) shall be five (5) days following

termination of the ICAB Service Terms. Infrascale is not responsible for the

availability or accessibility of Your Content following the expiration of the Retrieval

Period. You’re solely responsible for managing the download of Your and Your end

users’ Content, and Infrascale will have no liability if You fail to download such

Content prior to termination or during the Retrieval Period.

For clarity, termination of this Agreement also results in the termination of all

Orders. Further, termination or expiration of this Agreement or any Order(s) will not

release You from the obligation to make payment of all amounts accrued or due

and payable to Infrascale under the specific Order(s) prior to the effective date of

termination or expiration, and upon termination for any reason other than due to

an uncured breach by Infrascale, all future amounts due under all terminated

Orders shall be accelerated and become due and payable immediately (including

amounts due for all years of a multi-year subscription or multi-year renewal),

regardless of whether previously invoiced. For any use of the Services after

termination of the specific Order, the terms of this Agreement will apply and You

agree to pay the Fees applicable to such use except solely with respect to Your

authorized access to download Your Content under such specific Order.

8. Disclaimers.

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT

PERMITTED BY APPLICABLE LAW (A) THE SERVICE OFFERINGS AND THIRD-PARTY

PRODUCTS ARE PROVIDED AND DISTRIBUTED ON AN “AS-IS” AND “AS-AVAILABLE”

BASIS WITHOUT WARRANTIES OF ANY KIND WHATSOEVER, (B) INFRASCALE, ITS

AFFILIATES, SUPPLIERS AND LICENSORS DO NOT MAKE ANY OTHER WARRANTY OF

ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND

SPECIFICALLY DISCLAIM ANY AND ALL OTHER WARRANTIES, INCLUDING WITHOUT

LIMITATION (I) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A

PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY AND QUIET

ENJOYMENT, AND (II) WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR

USAGE OF TRADE, (C) INFRASCALE, ITS AFFILIATES, SUPPLIERS AND LICENSORS ARE

NOT RESPONSIBLE OR LIABLE FOR THE DELETION OF OR FAILURE TO STORE ANY

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CONTENT, DATA AND OTHER COMMUNICATIONS MAINTAINED OR TRANSMITTED

THROUGH USE OF THE SERVICES, (D) YOU AND USERS ARE SOLELY RESPONSIBLE

FOR SECURING AND BACKING UP YOUR CONTENT, AND (E) INFRASCALE, ITS

AFFILIATES, SUPPLIERS AND LICENSORS DO NOT WARRANT THAT THE SERVICE

OFFERINGS OR THIRD-PARTY PRODUCTS WILL BE UNINTERRUPTED, SECURE,

ERROR-FREE, OR FREE OF HARMFUL COMPONENTS OR THAT THE SERVICE

OFFERINGS OR THIRD-PARTY PRODUCTS ARE SUITABLE FOR COMPLIANCE WITH

DOCUMENT RETENTION OR OTHER LEGAL REQUIREMENTS. THE SERVICE

OFFERINGS AND THIRD-PARTY PRODUCTS ARE NOT DESIGNED OR INTENDED FOR

HIGH-RISK ACTIVITIES. IN NO EVENT WILL INFRASCALE, ITS AFFILIATES, SUPPLIERS,

OR LICENSORS BE LIABLE FOR ANY LOSS, LIABILITY, DAMAGES, OR CLAIMS RELATED

TO ANY REGULATORY OBLIGATIONS YOU OR ANY USER MAY HAVE RELATED TO

YOUR CONTENT. YOU ACKNOWLEDGE THAT INFRASCALE, ITS AFFILIATES,

SUPPLIERS AND LICENSORS DO NOT CONTROL THE TRANSFER OF DATA OVER

COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE

OFFERINGS AND THIRD-PARTY PRODUCTS MAY BE SUBJECT TO LIMITATIONS,

DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH

COMMUNICATIONS FACILITIES. INFRASCALE, ITS AFFILIATES, SUPPLIERS AND

LICENSORS ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR

OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

9. Limitation Of Liability.

INFRASCALE, ITS AFFILIATES, SUPPLIERS AND LICENSORS WILL NOT BE LIABLE TO

YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL,

CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR

LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR

DATA) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY SERVICE

OFFERINGS OR THIRD-PARTY PRODUCTS FURNISHED OR TO BE FURNISHED UNDER

THIS AGREEMENT OR THE USE THEREOF, EVEN IF A PARTY HAS BEEN ADVISED OF

THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF DIRECT DAMAGES DO NOT

SATISFY A REMEDY. FURTHER, NEITHER INFRASCALE NOR ANY OF ITS AFFILIATES,

SUPPLIERS, OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION,

REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR OR ANY

USERS’ INABILITY TO USE THE SERVICE OFFERINGS OR THIRD-PARTY PRODUCTS,

INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS

AGREEMENT OR AN ORDER, OR YOUR OR ANY USERS’ ACCESS OR USE OF THE

SERVICE OFFERINGS OR THIRD-PARTY PRODUCTS, (II) DISCONTINUATION OF ANY

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OR ALL OF THE SERVICE OFFERINGS, OR, (III) WITHOUT LIMITING ANY OBLIGATIONS

UNDER THE SERVICE LEVEL AGREEMENT, ANY UNANTICIPATED OR UNSCHEDULED

DOWNTIME OF ALL OR A PORTION OF THE SERVICE OFFERINGS FOR ANY REASON,

(B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, (C) ANY

INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH

THIS AGREEMENT OR YOUR OR ANY USERS’ ACCESS OR USE OF THE SERVICE

OFFERINGS, OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE

DELETION, DESTRUCTION, DAMAGE, LOSS, OR FAILURE TO STORE ANY OF YOUR

CONTENT OR OTHER DATA. IN ANY CASE, EXCEPT FOR PAYMENT OBLIGATIONS

UNDER SECTION 10.2, THE AGGREGATE LIABILITY OF INFRASCALE, ITS AFFILIATES,

SUPPLIERS AND LICENSORS UNDER THIS AGREEMENT WILL NOT EXCEED THE

AMOUNT YOU ACTUALLY PAY INFRASCALE UNDER THIS AGREEMENT FOR THE

SERVICE THAT GAVE RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS

BEFORE THE LIABILITY AROSE. THE LIMITATIONS IN THIS SECTION 9 APPLY ONLY TO

THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

10. Indemnification.

10.1. General. You will defend, indemnify, and hold harmless Infrascale, its

affiliates, suppliers and licensors, and each of their respective employees, officers,

directors, and representatives (collectively, the “Infrascale Indemnified Parties”)

from and against any Losses arising out of or relating to any third-party claim

concerning (a) Your or any Users’ access or use of the Service Offerings (including

any activities under Your Account and use by Your employees and personnel), (b)

breach of this Agreement or violation of applicable law by You, Users, or Your

Content, (c) Your and Users’ acts or omissions, or (d) a dispute between You and any

User. You will reimburse Infrascale for reasonable attorneys’ fees, as well as its

employees’ and contractors’ time and materials spent responding to any third-party

subpoena or other compulsory legal order or process associated with third-party

claims described in (a) through (c) above at its then-current rates.

10.2. Intellectual Property.

(a) Infrascale will defend You and Your employees, officers, and directors

(collectively, “Your Indemnified Parties”) against any third-party claim to the extent

based solely on an allegation that the Services or Infrascale Brand Features infringe

or misappropriate that third party’s intellectual property rights and will pay the

amount of any adverse final judgment or settlement. Notwithstanding the

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foregoing, Infrascale will have no obligations or liability under this Section or

otherwise with respect to any claim or award to the extent arising from (i) a

combination of the Services or Infrascale Brand Features with any other product,

service, software, data, method, or content, including Your Content, (ii) use of the

Services for a purpose or in a manner not permitted by this Agreement, or in a

manner for which the Services were not designed, (iii) any modification of the

Services or Infrascale Brand Features made without express written approval by

Infrascale, (iv) Your or any Users’ use of non-current or unsupported versions of the

Services or Infrascale Brand Features, (v) breach of this Agreement by any of Your

Indemnified Parties, or (vi) any Trial Service. In addition, Infrascale will have no

obligations or liability arising from Your or any User’s use of the Services after

Infrascale has notified You to discontinue such use.

(b) You will defend and indemnify the Infrascale Indemnified Parties against any

third-party claim alleging that any of Your Content or Your Brand Features infringes

or misappropriates that third party’s intellectual property rights, and will pay the

amount of any adverse final judgment or settlement.

of a third-party infringement or misappropriation claim, then Infrascale may, at its

sole option and expense (i) procure the right for You to continue using the Services,

(ii) modify the Services to make them non-infringing without materially reducing

their functionality, or (iii) replace the Services with a non-infringing, functionally

equivalent alternative. If Infrascale believes none of the foregoing remedies are

commercially reasonable, then Infrascale may Suspend or terminate Your and all

Users’ right to access and use the impacted Services. In the event of termination,

Infrascale will refund any pre-paid Fees (less any discounts provided and without

consideration of any prepayment discount applied) for the Services pro-rated for

the remaining Service Term.

(d) The remedies provided in this Section 10.2 are the sole and exclusive remedies

for any third-party claims of infringement or misappropriation of intellectual

property rights by the Services, either party’s Brand Features, or Your Content.

10.3. Process. The obligations under this Section 10 will apply only if the party

seeking defense or indemnity (the “Indemnified Party”) (a) provides the other party

(the “Indemnifying Party”) prompt written notice of the claim, (b) provides the

Indemnifying Party with sole control over the defense and settlement of the claim,

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and (c) reasonably cooperates with the Indemnifying Party (at the Indemnifying

Party’s expense) in the defense and settlement of the claim. In no event will the

Indemnifying Party agree to any settlement of any claim that requires the

Indemnified Party to admit liability or pay money without the prior written consent

of the Indemnified Party, which consent will not be unreasonably withheld,

conditioned, or delayed.

10.4. Indemnity for Third-Party Products. To the extent required or permitted

by agreements between Infrascale and the providers of Third-Party Products,

Infrascale will pass through to You rights to indemnification received with respect to

Third-Party Products, if any. Notwithstanding the foregoing, You acknowledge that

Infrascale is not responsible for the fulfillment of any Third-Party Product

indemnities or for issues attributable to use of Third-Party Products.

11. General Provisions.

11.1. Publicity. Infrascale may use Your name and logo on the Site and marketing

materials solely to identify You as an Infrascale customer and provided such use

does not reveal any of Your Confidential Information.

11.2. Disputes.

(a) Generally. Notwithstanding any other provisions in this Agreement, and except

as otherwise set forth in this Section, if either You or Infrascale has any dispute,

controversy, or claim, whether founded in contract, tort, statutory, or common law,

concerning, arising out of, or relating to this Agreement or the Service Offerings,

including any claim regarding the applicability, interpretation, enforceability, scope,

validity, or formation of this arbitration clause and/or this Agreement (each of the

foregoing, a “Legal Claim”) that cannot be resolved directly between You and

Infrascale, then such Legal Claim will be settled by confidential, binding arbitration

administered by the American Arbitration Association (“AAA”) in accordance with

the then-current Commercial Arbitration Rules of the AAA (the “AAA Rules”). The

award of the arbitrator shall be accompanied by a reasoned opinion. Judgement on

the award may be entered in any court of competent jurisdiction. Except as may be

required by law, neither a party nor an arbitrator may disclose the existence,

content, or results of any arbitration hereunder without the prior written consent of

both parties. The arbitrator shall award to the prevailing party, if any, the costs and

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attorneys’ fees reasonably incurred by the prevailing party in connection with the

arbitration. This Section shall not preclude either party from seeking (i) equitable

relief in accordance with the Terms of Service; or (ii) relief from a small claims court

for disputes or claims within the scope of such court’s jurisdiction.

(b) Process. To initiate an arbitration proceeding, an arbitration claim must be

submitted by the claimant (the “Claimant”) to the AAA, and a written Demand for

Arbitration must be provided to the other party (the “Opposing Party”), pursuant to

the AAA Rules. Arbitration hearings will be held in Fairfax County, Virginia or any

other location that is mutually agreed upon by You and Infrascale. A single

arbitrator will be mutually selected by You and Infrascale and shall be (i) a practicing

attorney licensed to practice law in Virginia or a retired judge; and (ii) selected from

the arbitrators on the AAA’s roster of commercial dispute arbitrators who have a

background in finance, technology, and/or online commerce law (or if there are no

such arbitrators, then from the arbitrators on the AAA’s roster of commercial

dispute arbitrators) (collectively, the “Arbitrator Requirements”). If You and

Infrascale cannot mutually agree upon an arbitrator within ten (10) days of the

Opposing Party’s receipt of the Demand for Arbitration from the Claimant, then the

AAA shall appoint a single arbitrator that satisfies the Arbitrator Requirements. The

arbitrator will follow the law and will give effect to any applicable statutes of

limitation. Payment of filing, administration and arbitrator fees will be governed by

the AAA’s rules.

11.3. Governing Law. Except as otherwise expressly provided herein, all claims

shall be governed by and construed in accordance with the laws of the

Commonwealth of Virginia, exclusive of conflict or choice of law rules. The United

Nations Convention on Contracts for the International Sale of Goods does not apply

to this Agreement. The courts in some countries will not apply U.S. law to some

types of disputes. If You reside in one of those countries, then where U.S. law is

excluded from applying, the laws of Your country of residence will apply.

11.4. Modifications. Infrascale may modify this Agreement at any time, in our sole

discretion. If we make any material modifications to this Agreement, we shall

inform You by posting the modified terms

at https://www.infrascale.com/legal/customer-agreement/. It is Your responsibility

to check periodically for modifications to this Agreement. The modified Agreement

will be effective upon Your next subscription renewal following posting of the

updated terms. Your continued access or use of the Service Offerings after such

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renewal confirms Your consent to be bound by this Agreement, as amended. If You

do not agree to be bound by the modified terms, then You may not continue to use

the Service Offerings.

11.5. Entire Agreement. This Agreement contains the entire understanding

between the parties with respect to the subject matter hereof and supersedes all

prior and contemporaneous communications, representations, warranties,

proposals, negotiations, discussions, understandings, or agreements (whether oral,

written, implied, or otherwise) between the parties with respect to the subject

matter hereof. In entering into this Agreement, neither party has relied on, and

neither party will have any right or remedy based on, any statement,

representation, or warranty, except those expressly set out in this Agreement. The

terms located at any URL referenced in this Agreement and an Order are

incorporated by reference into this Agreement. After this Agreement is effective,

Infrascale may provide an updated URL in place of any URL in this Agreement. If

there is a conflict between the documents that make up this Agreement, the

documents will control in the following order: the Order, the terms at any URL, and

this Agreement. Any additional or conflicting terms contained in any purchase

order, proposal, or other document provided by You shall be deemed rejected by

Infrascale without need of further notice of objection, even if such document is

acknowledged or accepted by Infrascale, and regardless of any statement to the

contrary which may be contained therein, and shall be of no effect or in any way

binding upon Infrascale. Except as otherwise expressly set forth herein, any

amendment to this Agreement must be in writing, signed by both parties, and

expressly state that it is amending this Agreement.

11.6. Third-Party Beneficiaries. Infrascale shall be a third-party beneficiary of any

contract between You and Users with respect to the Service Offerings, and shall be

entitled to enforce the obligations therein. Other than as expressly provided herein,

no third-party beneficiaries are intended or will be construed as created by this

Agreement.

11.7. Notices.

(a) To You. Infrascale may provide any notice to You under this Agreement by (i)

posting a notice on the Infrascale Site or Dashboard, or (ii) sending a message to

the email address then associated with Your Account. Notice Infrascale provides by

posting on the Infrascale Site or Dashboard will be effective upon posting and

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notice Infrascale provides by email will be effective when the email is sent. It is Your

responsibility to keep Your email address current. You will be deemed to have

received any email sent to the email address then associated with Your Account

when Infrascale sends the email, whether or not You actually receive the email.

(b) To Infrascale. To provide Infrascale notice under this Agreement, You must do so

via personal delivery, overnight courier or registered or certified mail to Infrascale,

Inc., 12110 Sunset Hills Road, Suite 600, Reston, VA 20190, Attention: Legal

Department. Infrascale may update its address for notice by providing notice of

such change pursuant to subsection (a) above. Notice provided by personal delivery

will be effective immediately. Notice provided by overnight courier will be effective

one (1) business day after it is sent. Notice provided registered or certified mail will

be effective three (3) business days after it is sent.

11.8. Trade Compliance. In connection with this Agreement, each party will

comply with all applicable import, re-import, sanctions, anti-boycott, export, and reexport

control laws and regulations, including all such laws and regulations that

apply to a U.S. company, such as the Export Administration Regulations, the

International Traffic in Arms Regulations, and economic sanctions programs

implemented by the Office of Foreign Assets Control. For clarity, You are solely

responsible for compliance related to the manner in which You choose to use the

Service Offerings, including Your transfer and processing of Your Content, the

provision of Your Content to Users, and the geographic region in which any of the

foregoing occur. You represent and warrant that You and any party that owns or

controls You are not subject to sanctions or otherwise designated on any list of

prohibited or restricted parties, including but not limited to the lists maintained by

the United Nations Security Council, the U.S. Government (e.g., the Specially

Designated Nationals List and Foreign Sanctions Evaders List of the U.S.

Department of Treasury, and the Entity List of the U.S. Department of Commerce),

the European Union or its Member States, or other applicable government

authority.

11.9. U.S. Government Rights. The Service Offerings are provided to the U.S.

Government as “commercial items,” “commercial computer software,” “commercial

computer software documentation,” and “technical data” with the same rights and

restrictions generally applicable to the Service Offerings. If You are using the Service

Offerings on behalf of the U.S. Government and these terms fail to meet the U.S.

Government’s needs or are inconsistent in any respect with Federal law, You will

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immediately discontinue Your use of the Service Offerings. The terms “commercial

item” “commercial computer software,” “commercial computer software

documentation,” and “technical data” are defined in the Federal Acquisition

Regulation and the Defense Federal Acquisition Regulation Supplement.

11.10. Questions. If You have any questions regarding this Agreement, please

contact Infrascale at legal@infrascale.com.

Tulsa Connect –

Terms and Conditions of Private Cloud Hosting Service

I. Private Cloud Host Management. Private Cloud host servers provided by TC are managed to the

extent

detailed below. Every Private Cloud host server includes basic managed services including initial

operating

system / hypervisor installation, hardware maintenance when required, basic monitoring, basic

troubleshooting

support for the operating system / hypervisor, patch management for the host (pursuant to an established

maintenance schedule), and remote reboot services. Additional managed services may be provided as

outlined

in the Private Cloud Hosting Order Form.

a. Operating system / hypervisor setup and testing – TC will perform a standard operating system /

hypervisor installation and test the configuration of that installation.

b. Hardware maintenance – TC will provide hardware replacements for failed components on TC

provided hardware at no charge under the provisions of the applicable policies of the hardware vendor.

Any operating system / hypervisor reinstallation required due to failed hardware replacement will be

performed at no charge. Please see the section entitled “Backup and data recovery” for information on

data recovery after any required system reinstallation.

c. Basic monitoring – Private Cloud host servers will be monitored by TC monitoring systems. By

default, a server will be queried to determine up/down status via ICMP ping or other method.

Notifications of failed tests may optionally be sent to an E-mail address provided by the Customer. In

addition, notifications will be dispatched to TC support personnel in the event of a service failure.

d. Backup and data recovery – TC recommends the nightly backup of all critical Customer data. If

backups are performed by TC as part of this Service Agreement and a restore is necessary, TC will

make commercially reasonable efforts to restore Customer data from the latest full backup, but does

not warrant that any such restoration will be successful, complete or accurate. Customer assumes all

liability associated with backup and data recovery and acknowledges that it is not relying on TC for

providing redundancy. As with all data processes, TC cannot guarantee the viability or availability of

any backup performed via automated or manual processes.

II. TC Chargeable Services

a. All services provided outside the scope of this Service Agreement are chargeable to the Customer.

These out of scope services include software installation or configuration not included in this Service

Agreement, or additional hardware that is requested to be installed in the Private Cloud host server.

b. All such additional services will be billed at our then-current hourly rates. Emergency service after

hours

required for any reason other than failure of hardware or basic TC infrastructure may result in premium

service charges. All such premium charges will be communicated to the Customer prior to performing

the service.

III. Software Installation, Licensing, and Usage Compliance

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a. Software Installation – With the exception of software provided by TC as part of this Service

Agreement, Customer is responsible for the procurement and installation of all software installed on

Customer Private Cloud infrastructure.

b. Software Licensing and Usage – Customer is responsible for complying with the software licensing

and usage agreements for all software installed on Customer Private Cloud host servers and

associated virtual machines (VMs), including but not limited to, those set forth by the software vendor.

Customer is liable for payment of all fines and/or penalties assessed against it or against TC for

violation of any software licensing or usage agreements with respect to software installed on Customer

Private Cloud host servers and associated VMs.

IV. Server Security

a. Host Servers – TC maintains reasonable security practices for software on the Private Cloud host

servers. TC performs security patch management, updates, and configuration changes for the Private

Cloud host servers in accordance with industry best practices. TC will schedule these activities with

Customer to minimize impact on uptime of the environment.

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b. Virtual Machines

i. Security Practices – Customer must maintain reasonable security practices for the software

services running on Customer Private Cloud VMs. Unless otherwise specified in this Service

Agreement, Customer is responsible for applying all security patches, updates, and

configuration changes within the VMs in accordance with industry best practices to maintain

proper security. Without limiting the foregoing, Customer will immediately respond to any

remotely exploitable flaws that will grant unauthorized administrative access to Customer

infrastructure to ensure that the environment is not compromised. If TC attempts to contact

the Customer regarding any such security issues and receives no response, TC reserves the

right, without obligation or liability of any kind, to apply all patches/remedies which in its

discretion TC determines necessary or appropriate to mitigate such security issues whenever

TC deems it necessary, including, without limitation, during Customer’s regular business

hours.

ii. Compliance – Customer is responsible for complying with applicable security and privacy

laws and regulations related to the software services running on Customer Private Cloud

VMs.

iii. Monitoring – Unless security monitoring service is specifically contracted in this Service

Agreement, the Customer is solely responsible for monitoring security issues for the software

services running on Customer Private Cloud VMs. While TC may, as a courtesy, provide

security and vulnerability alerts from time to time, the Customer is solely responsible for

obtaining and responding to security updates for the services it provides.

c. Definition – As used in this Service Agreement, “reasonable security practices” include, without

limitation, access controls, harm detection, security auditing, physical protections, maintenance of

privacy and confidentiality, and recovery plans.

d. Security Compromise – If a security compromise is either suspected or detected, Customer must

contact TC support immediately for threat assessment. Customer must provide TC support with all

requested information about the potential or actual security compromise, including without limitation, the

number of individuals whose information was impacted, organized by state of residency, how and when

the Customer became aware of the security compromise, and the steps taken to remediate the issue.

V. Service Level Commitment

a. TC will use commercially reasonable effort to make the Private Cloud Services available to Customer at

all times. If the Services are unavailable to Customer, Customer: (i) must contact TC and outline service

deficiency with supporting data; (ii) must allow TC a reasonable amount of time to cure alleged service

deficiency; and (iii) may request a credit as provided in Section C below.

b. If after 30 days TC has failed to correct a mutually recognized service deficiency, Customer may

terminate any affected component of this Service Agreement, without liability, by giving written notice to

TC.

c. Credit for Service Interruption – Subject to the below Exceptions, upon Customer’s request, TC will

issue a credit to Customer for outages in an amount equal to one day’s worth of the monthly services fee

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paid by Customer, for each 4 hour period in any day that such outages occurs during a particular month.

In no case will the total credit issued exceed the Customer’s monthly services fee.

i. Exceptions: (1) circumstances beyond TC’s reasonable control, including, without limitation,

acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other

labor disturbance, interruption of or delay in transportation, unavailability of or interruption or

delay in telecommunications or third party services, failure of third party software; (2) failure of

access circuits to the TC Network, unless such failure is caused solely by TC; (3) scheduled

and emergency maintenance and upgrades; (4) DNS or Internet routing issues outside the

direct control of TC.

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Terms and Conditions of Co-Location Service

VI. Software Installation, Licensing, and Usage Compliance

a. Software Installation – With the exception of software provided by TC to Customer under the

Agreement or pursuant to an agreement contemplated thereby, Customer is solely responsible for the

procurement and installation of all software installed on Customer equipment.

b. Software Licensing and Usage – Customer is responsible for complying with the software licensing

and usage agreements for all software installed on Customer equipment including, without limitation,

those set forth in the Agreement and those required by Customer’s software vendor. Customer is liable

for payment of all fines and/or penalties assessed against it or against TC for violation of any software

licensing or usage agreements with respect to software installed on Customer equipment.

VII. Server Security

a. Unless security monitoring service is specifically contracted in a separate agreement between

Customer and TC, the Customer is solely responsible for monitoring security issues for the software

services running on Customer equipment. While TC may, as a courtesy and without further obligation or

liability, provide security and vulnerability alerts from time to time, the Customer is solely responsible for

obtaining, implementing, applying and responding to security updates for the services it provides.

b. Customer must maintain reasonable security practices for the software services running on Customer

equipment. Customer is also responsible for complying with all applicable security and privacy laws and

regulations related to the security of the software services running on Customer equipment, including all

Compliance Standards. “Reasonable security practices” the Customer must maintain for software

services running on Customer equipment include, without limitation, access controls, harm detection,

security auditing, maintenance of privacy and confidentiality, and recovery plans.

c. If a security compromise is either suspected or detected, Customer must contact TC support

immediately for threat assessment. Customer must provide TC support with all requested information

about the potential or actual security compromise, including without limitation, the number of individuals

whose information was impacted organized by state of residency, how and when the Customer became

aware of the security compromise, and the steps taken to remediate the issue.

VIII. Service Level Commitment

d. TC will use its reasonable commercial efforts to make the Services available to Customer at all times. If

the Services are unavailable to Customer, Customer: (i) must contact TC and outline service deficiency

with supporting data; (ii) must allow TC a reasonable amount of time to cure alleged service deficiency;

and (iii) may request a credit as provided in Section C below.

e. If after 30 days TC has failed to correct a mutually recognized service deficiency, Customer may

terminate any affected component of this Service Agreement, without liability, except for payment of all

amounts otherwise due to TC hereunder and under the Agreement by giving written notice to TC.

f. Credit for Service Interruption – Subject to the below Exceptions, upon Customer’s request, TC will

issue a credit to Customer for outages in an amount equal to one day’s worth of the monthly services fee

paid by Customer hereunder during the month(s) in which the outage(s) occurred, for each 4 hour period

in any day that such outages occurs during a particular month. In no case will the total credit issued

exceed the Customer’s monthly services fee for that month.

ii. Exceptions: (1) circumstances beyond TC’s reasonable control, including, without limitation,

acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other

labor disturbance, interruption of or delay in transportation, unavailability of or interruption or

delay in telecommunications or third party services, failure of third party software; (2) failure of

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access circuits to the TC Network, unless such failure is caused solely by TC; (3) scheduled

and emergency maintenance and upgrades; (4) DNS or Internet routing issues outside the

direct control of TC.

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GENERAL SERVICES AGREEMENT

This General Services Agreement (“Agreement”), dated as of the date of the last signature below (the

“Effective Date”), is between MBO Data LLC, d/b/a TulsaConnect (“TC”), and the customer identified on

the signature page (“Customer”).

1. Service.

(a) TC will provide service (“TC Service”) to Customer subject to the terms and conditions of

this Agreement.

(b) Customer will not use any TC Service in violation of any community standards, accepted

Internet policy, applicable terms of use, privacy policies, laws, or regulations of local, state,

or federal governments or agencies, or international treaties. Actions such as, but not

limited to, misuse of copyrighted, patented, licensed, or protected materials, use of the TC

Service for defamatory, threatening or obscene purposes, mishandling of sensitive or

personal information, and the mass distribution of any message on an intrusive basis to

users of the Internet are prohibited. This prohibition extends to the sending of unsolicited

mass mailings from another service, which in any way implicates the use of the TC Service,

TC equipment, or any TC provided e-mail or IP addresses. Violations of this section are

grounds for termination of the TC Service. Additional terms may apply based on the TC

Service type as outlined in the Acceptable Use Policy (AUP) available on the TC website

and which is incorporated herein by reference.

2. Security.

(a) The Internet is not a secure network. Confidential or sensitive information should not be

transmitted over the Internet unprotected. TC is not responsible for loss or theft of

information transmitted over the Internet. TC encourages Customer to employ VPN, SSL,

SSH, or other data encryption technologies when conducting business over the Internet.

(b) TC will employ reasonable security measures on TC devices, including but not limited to

routers, switches, servers and the like, including any necessary security patches, IP access

lists, and associated services. TC will not be responsible for security on Customer

Provided Equipment (as defined in Section 7(b)(i)) or equipment rented to Customer by TC

unless TC is specifically contracted to do so by the Customer as part of a Service

Agreement (as defined in Section 6(a)). If at any time TC determines that security

measures, including, without limitation, patches, are necessary to protect the integrity of

the TC Service, TC may implement such security measures without communicating in

advance with the Customer and without liability to Customer. TC will use reasonable

commercial efforts to inform Customer of such security measures.

for spam, viruses, other malware, and may scan mail destined for Customer Provided

Equipment (as defined in Section 7(b)(i)) or servers rented to Customer by TC if specifically

contracted to do so. TC may implement scanning of outbound e-mail messages upon

notice to Customer via TC’s standard notification procedures. TC makes no warranties as

to the effectiveness of inbound or outbound scanning and accepts no liability should

Customer devices become infected. Customer is responsible for employing industry standard

anti-malware and intrusion prevention software on Customer devices.

(d) TC provides reasonable physical security measures for TC data center facilities, including

electronic security measures, biometric access controls, and locked enclosed racks.

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Access to our facilities is limited to those who have a TC escort. When possible, access

to TC data center facilities outside of business hours will be scheduled with TC personnel

in advance.

(e) Customer shall provide updated contact information for approved technical personnel any

time there is a modification of such information. TC shall be entitled to rely on information

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provided by Customer without the obligation of further investigation. Before providing

access to TC’s data center facilities, TC will use reasonable efforts to verify the identity of

any person purporting to be an authorized representative of Customer and verify that the

Customer has designated such person as an authorized representative.

(f) Depending upon what industry Customer is operating within or what type of data Customer

processes or handles (e.g., medical or financial), there may be various security and related

laws, regulations and standards with which Customer is obligated to comply, including,

without limitation, HIPAA (Health Insurance Portability & Accountability Act),

SOX (Sarbanes Oxley Act), (GLBA) Gramm Leach Bliley Act, HITECH (Health Information

Technology for Economic & Clinical Health), and PCI DSS (Payment Card Industry Data

Security Standard) (collectively, “Compliance Standards”). While TC may provide certain

TC Services designed to assist Customer with compliance with certain Compliance

Standards, actual compliance with Compliance Standards is solely Customer’s

responsibility and TC is not responsible for ensuring that Customer’s systems operating in

conjunction with the TC Services or TC equipment are compliant with the Compliance

Standards. Additionally, the Compliance Standards include many features that are out of

TC’s control including, without limitation, Customer’s network and business processes.

ACCORDINGLY, TC DISCLAIMS ANY AND ALL WARRANTIES AND

REPRESENTATIONS THAT THE TC SERVICES, EQUIPMENT, SYSTEMS, NETWORK

OR PROCESSES ARE COMPLIANT WITH ANY COMPLIANCE STANDARD AND TC

DOES NOT REPRESENT THAT TC WILL UNDERTAKE ANY EFFORTS TO ACHIEVE

SUCH COMPLIANCE IN THE FUTURE. [TC will use its reasonable commercial efforts to

cooperate with Customer in Customer’s efforts to meet its obligations under the

Compliance Standards, but without any further obligation.] Determinations of TC

compliance or verification of TC compliance with any applicable rule, law, or standard

requires a separate agreement.

(g) Customer is responsible for compliance, compliance costs and legal costs associated with

unauthorized access, breaches, suspected or detected security compromises related to

this Agreement, including without limitation, notification to regulators, consumers,

consumer credit card companies, media, and law enforcement.

3. IP Address and Domain Name Services.

(a) All IP addresses that may be required for the TC Service shall be provided solely by TC.

If Customer leaves TC Service, all IP addresses must be returned to TC for reallocation to

other Customers within 48 hours and will not be available for continued use by departing

Customers.

(b) TC will host Customer domain name(s) on its servers when contracted to do so by

Customer. In the event Customer also elects to have TC register a domain name on behalf

of Customer with an approved domain name registrar, TC may do so but TC will not be

responsible for the ownership, control, and use of the domain name. If a Customer is no

longer using any other TC Service, Customer will be responsible for moving the domain

name to a new registrar or establishing a “domain registration” only account with TC. TC

shall have no liability for Customer’s failure to maintain registration of any domain name.

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4. Software Installation, Licensing, and Usage Compliance.

(a) Customer is responsible for the procurement and installation of all Software, as that term

is hereinafter defined, installed on Customer Provided Equipment (as defined in Section

7(b)(i)) or equipment rented to Customer by TC unless otherwise specified in a Service

Agreement (as defined in Section 6(a)).

(b) Customer is responsible for complying with the software licensing and usage agreements

for all software installed on Customer Provided Equipment (as defined in Section 7(b)(i))

or equipment rented to Customer by TC (“Software”) as set forth by the software vendors

(“Vendors”). Customer is liable for payment of all fines and/or penalties assessed against

it or against TC for violation of any software licensing or usage agreements with respect to

Software installed on Customer Provided Equipment (as defined in Section 7(b)(i)) or

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equipment rented to Customer by TC.

(i) Customer must not remove, modify, or obscure any copyright, trademark, or patent

notice, or any other notice of proprietary rights from any Software. Customer must

not reverse engineer, decompile, disassemble, or modify any Software. Customer

must not make any copies of or distribute the Software.

(ii) Customer must notify TC of any changes to, additions, or removals of active user

licenses related to TC Service, active user accounts or this Agreement. An “active

user” is a user that has the ability to log into a system. Licenses based on active

user accounts include, but are not limited to, Microsoft Remote Desktop SAL,

Microsoft Office, Microsoft Visio, Microsoft Exchange Basic Mailbox SAL, and

Microsoft Exchange Standard Mailbox SAL. Notifications must be made via email

to support@tulsaconnect.com within 24 hours of the change, addition, or removal.

(iii) Customer must notify TC of any changes in quantity to licenses that are physical

processor or virtual processor based related to this Agreement and TC Service.

Licenses based on physical processor or virtual processor include, but are not

limited to Microsoft Windows Server and Microsoft SQL Server. Notifications must

be made via email to support@tulsaconnect.com within 24 hours of the change,

addition, or removal. Without limiting any of the foregoing, Customer shall provide

to TC satisfactory proof of a current, valid and enforceable license for any software

(e.g. Customer’s own Office 365 or other service providers) that Customer intends

to run concurrently with TC’s SPLA licenses within twenty-four hours after

Customer begins running such licensed software.

(iv) Customer must keep records relating to all use and distribution of products by

Microsoft affiliated with TC Service, and Microsoft has the right, at its expense, to

verify compliance with their products’ license terms.

(v) Customer is required to report Customer’s usage of or compliance with Software

licenses.

(vi) If verification or self-audit reveals any unlicensed use of Microsoft products, then

within 30 days (1) Customer must order sufficient licenses to cover its use, and (2)

if unlicensed use is 5% or more, Customer must reimburse TC for the costs

incurred in verification and acquire the necessary additional licenses at 125% of

the price, based on the then-current price list and customer price level. The

unlicensed use percentage is based on the total number of licenses purchased for

current use compared to the actual installed base.

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(vii) The Software is not fault-tolerant and is not guaranteed to be error-free or to

operate uninterrupted. Customer must not use the Software in any application or

situation where the Software’s failure could lead to death or serious bodily injury

of any person, or to severe physical or environmental damage (“High Risk Use”).

High Risk Use does not include utilization of the Software for administrative

purposes, to store configuration data, engineering and/or configuration tools, or

other non-control applications, the failure of which would not result in death,

personal injury, or severe physical or environmental damage. These noncontrolling

applications may communicate with the applications that perform the

control, but must not be directly or indirectly responsible for the control function. In

addition to the indemnification obligations set forth elsewhere in this Agreement,

Customer agrees to indemnify and hold harmless TC and the Vendors from any

third-party claim arising out of Customer’s use of the Software in connection with

any High Risk Use.

5. Compliance.

(a) Customer is responsible for notifying TC if Customer is a “covered entity” or “business

associate” of a covered entity under HIPAA or HITECH. Customer may not use a TC

Service to create, receive, maintain, or transmit protected health information on behalf of

itself or any covered entity unless and until Customer has notified TC and the parties have

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entered into a business associate agreement. Customer is responsible for notifying TC if

Customer intends to process any cardholder data as that term is defined in the PCI-DSS

or is required to be PCI-DSS-compliant or to meet any other Compliance Standards related

to the use or processing of cardholder data. Customer may not use a TC Service to create,

receive, maintain, or transmit cardholder data on behalf of itself or any other person unless

and until Customer has notified TC and the parties have entered into a separate agreement

regarding such Compliance Standards.

(b) Customer represents and warrants that Customer is not a resident of any country or

affiliated with any organization prohibited to do business within the United States.

or make available, whether directly or indirectly, any regulated item or information to

anyone outside the U.S. in connection with this Agreement without first complying with all

export control laws and regulations that may be imposed by the U.S. government and any

country or organization of nations within whose jurisdiction Customer operates or does

business.

(d) Without limiting the foregoing, Customer agrees to comply with all applicable U.S. and non-

U.S. laws, rules, regulations and orders, including, but not limited to, tax, export and import,

embargo and trade sanctions, intellectual property, including copyright, content, sales,

mail-order, commerce, and e-commerce laws and regulations. Customer shall be

responsible for determining what laws or regulations are applicable to Customer’s use of

the TC Services. Customer shall, upon the request of TC, provide TC assurance of

Customer’s compliance with those laws.

(e) TC is headquartered in the United States and currently our services are only intended for

individuals located in the United States. If you are located outside of the United States, be

advised that any information you provide to TC will be transferred to and stored in the

United States and that, by submitting information to TC, you explicitly authorize its transfer

and storage within the United States. We will protect the privacy and security of personal

information according to TC policies. If Customer is providing information that is subject

other security and privacy laws that require specific measures by TC, Customer will notify

TC, and Customer will be responsible for obtaining any necessary separate agreements.

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6. Service Agreements.

(a) Customer may submit to TC a request for a TC Service using TC’s standard service

agreement form, a valid TC Service proposal, or other such documents (each a “Service

Agreement”). If TC accepts the Service Agreement, TC will provide the TC Service to

Customer upon the rates, terms, and conditions specified herein and in the applicable

Service Agreement. Each Service Agreement submitted by Customer for a TC Service

shall incorporate and be subject to the terms and conditions of this Agreement. To the

extent that the terms contained herein vary from or conflict with the terms of any Service

Agreement, the terms of the Service Agreement shall control. Notwithstanding the absence

of Customer’s signature, an electronic Service Agreement shall be binding on Customer if

Customer has otherwise indicated acceptance of the Service Agreement. TC reserves the

right not to accept a Service Agreement under this Agreement at any time.

(b) Certain services may be provided by one or more third parties (“Third Party Services”), as

indicated on the applicable Service Agreement. TC’s right to provide or resell Third Party

Services remains subject to its agreements with the third party provider. Customer’s use

of Third Party Services may be subject to the third party’s terms and conditions, as

indicated on the applicable Service Agreement, and any third party terms and conditions

will apply solely with respect to Third Party Services. Unless directed otherwise by TC,

Customer shall interface and communicate directly with TC with respect to Third Party

Services.

date on which data packets can be sent to Customer (in the case of co-location, cloud

hosting, or dedicated / managed server) or the date that Customer domain name is

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installed on TC DNS and web servers (in the case of web hosting). Notwithstanding the

above, the date shall not be later than 60 days from the date of the Service Agreement

unless otherwise agreed to by TC. If Customer cancels a Service Agreement, or any

component of a Service Agreement, before the Service Agreement Effective Date,

Customer shall pay TC all reasonable, directly associated, documented and otherwise

unrecoverable costs and expenses incurred by TC in connection with cancellation.

(d) Unless otherwise specified in a Service Agreement, if Customer terminates a Service

Agreement after the Service Agreement Effective Date other than by reason of TC’s

default, Customer shall (A) provide at least 30 days’ written notice to TC of its intent to

terminate and (B) be liable for 100% of the remaining contract value. Specific early

termination fees may be contained within a Service Agreement.

(e) TC reserves the right to add, delete, or otherwise change its list of service offerings during

the term hereof. TC may cancel a TC Service provided to Customer under a Service

Agreement if (i) TC no longer has the legal or contractual right to provide the TC Service

(including, but not limited to, software license rights), (ii) TC ceases for any reason to

provide such TC Service, or its services generally, to the general public, or (iii) Customer

breaches the terms of this Agreement. TC may increase its software license or rental rates

so long as TC has provided 30 days advance written notice. If TC raises the rate for a

particular TC Service, Customer may terminate any affected component of a Service

Agreement, without liability, by giving written notice at least 10 days before the effective

date of the rate increase. Customer’s continued use of a Service after notice of a rate

increase shall constitute Customer’s acceptance of the new rate.

(f) Upon expiration of the term of a Service Agreement, the Service Agreement terms,

conditions, and rates shall continue on a month to month basis until Customer or TC

terminates the Service Agreement.

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(g) In addition to Services identified in a Service Agreement, TC may provide, upon

Customer’s request, technical support services (“Technical Services”) in connection with

Services provided to Customer under a Service Agreement. Technical Services include,

but are not limited to, remote or on-site technical support and phone or email support to

upgrade software or troubleshoot local network or equipment issues. Technical Services

are provided by TC (or third parties designated by TC) and not by Software Vendors. Onsite

Technical Services are limited to Customer locations within the Tulsa and Oklahoma

City metro areas. Remote Technical Services may be available in additional areas.

Technical Services are billed on a time and materials basis at TC’s then-current hourly

rates and are subject to the payment terms set forth in Section 8 below. Technical Services

may not be available in all circumstances. TC may decline to provide Technical Services

if: (i) Customer is not current in payments due under this Agreement or any Services

Agreement, (ii) Customer is otherwise in breach of any provision of this Agreement or any

Services Agreement, (iii) TC, in its reasonable discretion, determines that it is not

practicable to provide Technical Services to Customer under the circumstances. For onsite

Technical Services, Customer shall provide TC’s representatives with a safe working

environment and access to the worksite and equipment necessary for TC to provide the

Technical Services. Customer acknowledges that remote Technical Services will require

TC representatives to temporarily access and control Customer’s workstations. Customer

is responsible for backing up and maintaining the privacy of any data or files on the

workstation before providing TC representatives access to the workstation for the provision

of any Technical Services.TC cannot and will not be held responsible or liable for any

issues related to Technical Services.

(h) To be eligible for Technical Services, Customer must adhere to TC’s security requirements

as made in this Agreement, Service Agreements and our security requirements in our other

policies. This includes, but not limited to, restricting open TCP/UDP ports by IP address

or VPN access, the use of complex passwords, appropriate user access level (least

privileged concept), established maintenance schedules, installing patches deemed urgent

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by TC in a timely manner, etc. Failure to do so may result in the termination of Technical

Services, the removal of after-hours availability for technical services, and other chargeable

items.

7. Equipment and Installation.

(a) TC Provided Equipment

(i) TC, or its agent, shall provide, install, maintain, repair, operate and control TC’s

equipment based on the terms in the Service Agreement. Unless specifically

provided for herein, or in any Service Agreement, TC shall pay the cost of

purchasing and installing TC’s equipment and TC’s equipment shall be and remain

the sole property of TC.

(ii) Customer shall make TC’s equipment located on Customer’s premises available

for maintenance in a timely manner. Except as otherwise provided herein or in a

Service Agreement, TC shall provide reasonable notice before entering

Customer’s premises to install, maintain or repair any of the equipment. Customer

shall provide power, heating, cooling, security, and other environmental

considerations to TC’s equipment located on Customer’s premises in accordance

with this Agreement, the applicable Service Agreement, and equipment

documentation. TC is not responsible for any malfunction or interruption of service

attributable to Customer’s failure to maintain the environmental considerations.

(iii) Customer shall be liable for any loss or damage, including theft, to TC’s equipment

arising from Customer’s or a Customer authorized third party’s negligence,

intentional act, willful misconduct, unauthorized maintenance or other cause. In

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the event of any loss or damage to TC’s equipment pursuant to this paragraph,

Customer shall reimburse TC for the reasonable cost of repair of TC’s equipment,

or the replacement thereof, in TC’s sole discretion, within 30 days after receipt by

Customer of a written request for reimbursement. If TC does not receive

reimbursement of the cost of repair of TC’s equipment, or the replacement cost,

TC may, at its option, without liability, suspend TC Services until such amounts are

paid in full, or terminate this Agreement or any Service Agreement and avail itself

of its remedies hereunder, at law or in equity.

(iv) TC’s equipment shall remain the sole and exclusive property of TC, and nothing

contained herein shall give or convey to Customer, or any other person, any right,

title or interest whatsoever in TC’s equipment unless otherwise specified in the

Service Agreement. TC’s equipment shall at all times be and remain personal

property, notwithstanding that it may be, or become, attached to, or embedded in,

realty. Customer shall not tamper with, remove or conceal any identifying plates,

tags or labels identifying TC’s ownership interest in TC’s equipment. Customer

shall not permit or cause any lien or encumbrance to be placed on TC’s equipment,

and Customer shall immediately cause any such lien or encumbrance to be

removed upon TC’s demand.

(b) Customer Provided Equipment

(i) “Customer Provided Equipment” means any server, switch, or other equipment

provided by Customer, including equipment owned by Customer or owned by a

third party and leased to Customer. TC shall have no obligation to install, maintain

or repair Customer Provided Equipment unless otherwise specified in a Service

Agreement. If, on responding to a Customer-initiated support request, TC

determines that the cause of the service deficiency was a failure, malfunction or

the inadequacy of equipment other than TC’s equipment, Customer shall

compensate TC for services performed at its standard hourly rate, plus the cost of

any materials expended.

(ii) In some cases, TC may allow Customer to arrange for Customer Provided

Equipment to be shipped directly to TC’s facility for temporary storage until the

equipment is installed in the data center. In these cases, the delivery and storage

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of the equipment will be governed by a Short-Term Equipment Storage Contract

entered into between TC and Customer before delivery. Customers may request

that contract from their TC account representative.

(iii) Customer is solely responsible for Customer Provided Equipment that is located

in a TC facility. Customer agrees to provide insurance that TC deems adequate

in its discretion to protect Customer Provided Equipment from any and all events,

which may damage Customer Provided Equipment whether caused by Customer

representative, TC employee, any other party or an event who (which) may cause

damage to Customer Provided Equipment. Except as provided in subparagraph

(iv) of this Section 7 (b), in no case shall TC be liable for any damages, including,

without limitation, consequential, indirect or incidental damages, suffered by

Customer due to failure of Customer Provided Equipment for any reason.

Customer agrees to indemnify TC for any claims that may arise as a result of

Customer Provided Equipment being located in a TC facility.

(iv) TC shall be liable for only such loss or damage, including theft, to Customer

Provided Equipment that arises from TC’s gross negligence, willful misconduct, or

unauthorized maintenance. In the event of any loss or damage to any Customer

Provided Equipment pursuant to this paragraph, TC shall reimburse Customer for

the reasonable cost of repair of the equipment, or the replacement thereof, in TC’s

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discretion, within 30 days after receipt by TC of a written request for

reimbursement.

storage devices (“Storage Devices”) to be shipped directly to TC’s facility. Upon notice from

Customer, TC personnel will accept delivery of Storage Devices at the building delivery

entrance. Customer is solely responsible for arranging, insuring and paying for shipment

and for encryption of data on Storage Devices. TC is not responsible for (i) any mistake,

error, or omission in inspecting the shipment and (ii) any damage to or loss of the shipment,

any Storage Device, or data during shipment. Customer accepts all risk of loss during

shipment. TC’s only obligations with respect to delivery are to accept delivery and notify

Customer of the delivery. Upon delivery, TC personnel will connect the Storage Device to

Customer’s Service environment for Customer to transfer data.

8. Payment Terms and Services Suspension / Termination.

(a) Payment Terms

(i) Customer shall pay TC all recurring and non-recurring charges for the TC Service

at the rates set forth in each Service Agreement, or for Technical Services at TC’s

then-current hourly rates, plus all Taxes and Additional Charges (such as

bandwidth overage or other usage / consumption charges). Billing for the TC

Service will commence on the Effective Date, regardless of acceptance by

Customer.

(ii) TC will provide Customer with a monthly invoice for the TC Service and Customer

shall pay TC in full upon Customer’s receipt of invoice. If TC does not receive full

payment within 30 days after Customer received the invoice, TC may charge

Customer interest on the unpaid balance at the rate of 1.5% per month or the

highest lawful rate, whichever is lower. Customer shall pay all costs and expenses,

including reasonable attorneys’ fees, incurred by TC in collecting past due

balances.

(iii) Unless written notice of a dispute as to the charges for the Service is received by

TC within 30 days after the statement date, such statement shall be deemed

correct and payable in full by Customer. In the event of a billing dispute, Customer

shall timely pay the undisputed amounts and shall provide detailed information

regarding any such disputed amounts to TC.

(iv) If applicable, Customer shall keep on file with TC copies of its current tax

exemption certificates.

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(b) Suspension of Service; Termination of Service Agreement

(i) TC may suspend or terminate the TC Service to Customer if Customer:

(A) is more than 10 days past due in paying any TC invoice pursuant to its

terms, excluding those amounts which Customer has notified TC as

reasonably being in dispute; or

(B) is past due in paying 2 or more consecutive monthly invoices that are not

in dispute;

seeking liquidation, reorganization or other relief (such as the appointment

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of a trustee, receiver, liquidator, custodian or such other official) under any

bankruptcy, insolvency or other similar law; or,

(D) is otherwise in breach of this Agreement.

(ii) If TC terminates a Service Agreement pursuant to this Section, TC shall have the

right to (i) full payment for any amounts due TC for the TC Service rendered before

the date of termination, (ii) 100% of the remaining contract value, plus (iii) any

specific early-termination charges contained in the Service Agreement.

(iii) Upon 30 days written notice following defaults other than those described above,

the non-defaulting party may terminate a Service Agreement upon the other party’s

failure to cure the alleged default within such 30 day period. In addition to the

remedies set forth above, upon the default of a party, the other party may pursue

all remedies available to it under the terms hereof and under any applicable law.

(iv) Unless otherwise specified in a Service Agreement, if Customer terminates a

Service Agreement after the Service Agreement Effective Date other than by

reason of TC’s default, Customer shall (A) provide at least 30 days’ written notice

to TC of its intent to terminate and (B) be liable for 100% of the remaining contract

value. Specific early termination fees may be contained within a Service

Agreement.

(v) Upon termination of this Agreement or a Service Agreement, Customer may elect

to access and export its data within 30 days of the effective date of termination

(“Transition Period”). Customer must notify TC thirty days before the termination

effective date of its intent to utilize the Transition Period. If TC has received such

a timely notice, TC will provide Customer access to, and the ability to export,

Customer data during the Transition Period at TC’s then-current rates for the

applicable TC Service. TC may require a deposit to secure payment for TC

Services during a Transition Period. This Agreement and the applicable Service

Agreement will govern the TC Services during the Transition Period. Customer

may request transition assistance from TC personnel at TC’s then-current hourly

rates for Technical Services. TC may require a deposit before providing transition

assistance. Upon termination, TC may without liability whatsoever delete or

overwrite Customer data (1) on the termination date if Customer has not provided

notice of its intent to use the Transition Period or (2) at the conclusion of the

Transition Period if Customer has elected to use the Transition Period. Customer

is solely responsible for retrieving its data before the termination date or expiration

of the Transition Period, as applicable.

Customer, TC retains a lien on property of Customer in TC’s possession. Customer hereby

grants to TC a security interest in and to all property of Customer that is in TC’s possession

and shall execute all documents, instruments and agreements and do all things necessary

and appropriate to perfect TC’s security interest in such property. Even though this

Agreement provides for a lien by TC for the performance of services and materials

contemplated by this Agreement, this Agreement shall not be construed as a waiver by TC

of the right to assert any statutory lien that may be available under applicable law. To the

extent permitted by applicable law, Customer hereby waives any rights, statutory or

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otherwise, to retrieve or take possession of its property, though self-help or otherwise, that

is subject to the lien and security interest provided herein on such property until any and

all amounts due and owing to TC have been paid in full.

9. Taxes and Additional Charges. Any applicable federal, state or local use, excise, sales or

privilege taxes, duties, franchise fees, right of way fees, and right of entry fees or similar liabilities

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charged to or against TC or Customer because of Service furnished by TC (collectively, Taxes and

Additional Charges), shall be paid by Customer in addition to the regular charges under each

Service Agreement. Charges shall not include any taxes for which Customer has furnished a valid

exemption certificate.

10. Disclaimers; Limitation of Liability.

(a) TC DOES NOT WARRANT THAT THE TC SERVICES OR TECHNICAL SERVICES WILL

BE FREE OF ERRORS, BE UNINTERRUPTED, OR WILL MEET CUSTOMER’S

REQUIREMENTS. THE TC SERVICES AND TECHNICAL SERVICES ARE PROVIDED

ON AN “AS IS” BASIS AND TC EXPRESSLY DISCLAIMS ALL WARRANTIES,

CONDITIONS, AND INDEMNITIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING,

WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A

PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR ANY OTHER WARRANTY

ARISING FROM THE COURSE OF PERFORMANCE OR COURSE OF DEALING.

CUSTOMER UNDERSTANDS AND AGREES THAT TC WILL NOT BE LIABLE FOR ANY

TEMPORARY DELAY, OUTAGE, OR INTERRUPTION OF THE TC SERVICES, OR THE

UNAUTHORIZED ACCESS (“HACKING”) BY ANY THIRD PARTY INTO TC’S SERVERS

OR SYSTEMS, AND CUSTOMER HAS NOT ENTERED INTO THIS AGREEMENT IN

RELIANCE UPON ANY WARRANTY OR REPRESENTATION EXCEPT THOSE

SPECIFICALLY SET FORTH HEREIN.

(b) TO THE EXTENT PERMITTED BY LAW, TC DISCLAIMS FOR ITS VENDORS ALL

WARRANTIES AND ANY LIABILITY TO CUSTOMER FOR ANY DAMAGES, WHETHER

DIRECT, INDIRECT, OR CONSEQUENTIAL, ARISING FROM THE TC SERVICES.

CUSTOMER’S DUTY AND RESPONSIBILITY TO BACKUP CUSTOMER’S FILES AND

DATA. UNDER NO CIRCUMSTANCES WILL TC BE LIABLE TO CUSTOMER OR TO

ANY PARTY CLAIMING BY OR THROUGH CUSTOMER FOR DAMAGES OF ANY KIND

UNDER ANY LEGAL THEORY FOR LOSS OF CUSTOMER FILES AND/OR DATA.

(d) TC IS NOT LIABLE FOR: DELAYS IN INSTALLATION OR RESTORATION OF THE TC

SERVICE HEREUNDER; MISTAKES, ACCIDENTS, OMISSIONS, INTERRUPTIONS,

ERRORS OR DEFECTS IN THE ORDERING, PROCESSING, PROVISIONING, OR

TRANSMISSION OF THE TC SERVICE; LOSS OR DAMAGE OCCASIONED BY ACTS

OF GOD, FIRE, ELEMENTS, LABOR DISPUTES, SHORTAGES, UTILITY

CURTAILMENTS, POWER FAILURES, EXPLOSIONS, CABLE CUT AND OTHER

CAUSES BEYOND TC’S REASONABLE CONTROL; INDIRECT, SPECIAL,

INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO

LOST PROFITS OR REVENUES, ANY LOSS OF DATA, LOSS OF USE, OR

INTERRUPTION OF BUSINESS); PUNITIVE DAMAGES ARISING FROM A BREACH OF

THIS AGREEMENT, AND TO THE EXTENT ALLOWED BY LAW, FOR INJURY TO OR

DEATH OF ANY PERSON AND FOR DAMAGE TO OR LOSS OF ANY PROPERTY

ARISING OUT OF OR ATTRIBUTABLE TO ITS OPERATIONS AND PERFORMANCE

UNDER THIS AGREEMENT. TC’S LIABILITY FOR ANY AND ALL CAUSES AND

CLAIMS WHETHER BASED IN CONTRACT, WARRANTY, NEGLIGENCE OR

OTHERWISE SHALL IN NO EVENT EXCEED THE GREATER OF 1) AN AMOUNT

EQUIVALENT TO THE PROPORTIONATE CHARGE BY TC TO CUSTOMER FOR THE

PERIOD OF SERVICE AFFECTED (NOT TO EXCEED 3 MONTHS), OR 2) IF

APPLICABLE, THE REPLACEMENT VALUE OF ANY CUSTOMER PROVIDED

EQUIPMENT WHICH IS LOST OR DAMAGED AS A RESULT OF TC’S GROSS

NEGLIGENCE OR WILLFUL MISCONDUCT IN PROVIDING TC SERVICES OR

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PERFORMING TECHNICAL SERVICES. CUSTOMER ACKNOWLEDGES THAT THESE

LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND WITHOUT

SUCH LIMITATIONS TC WOULD NOT ENTER INTO THIS AGREEMENT.

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11. Indemnification.

(a) Customer shall indemnify, defend and hold harmless TC, its affiliates and their respective

directors, officers, employees, agents, successors, and assigns (the “Indemnified Parties”)

from and against any and all claims, actions, proceedings, damages, costs, expenses and

liabilities, including reasonable attorney’s fees and disbursements, arising from or related

to Customer’s use of any TC Service, Technical Services or the performance of its

obligations and duties under this Agreement except to the extent those damages, costs,

expenses, and liabilities arise from the negligence or willful misconduct of TC. TC shall

promptly notify Customer in writing of any such suit or claim.

(b) In addition to and not in limitation of the Customer’s obligations under subparagraph (a)

above, Customer shall indemnify, defend and hold harmless the Indemnified Parties from

and against any and all claims, actions, proceedings, damages, costs, expenses and

liabilities, including reasonable attorney’s fees and disbursements, incurred or likely to be

incurred by any Indemnified Party arising from or related to Customer’s failure to comply

with the terms of any third party software license or usage guidelines.

12. Subject to Laws. This Agreement, and each Service Agreement, is subject to all applicable

federal, state, and local laws, and regulations, rulings, and orders of governmental agencies, and

the obtaining and continuance of any required approval or authorization of any governmental body.

TC may terminate its obligations under this Agreement without liability if ordered to do so by the

final order or ruling of a court or other governmental agency or if such order or ruling would make

it impossible or commercially infeasible for either party to carry out its obligations under this

Agreement. In addition, if at any time during the Term of this Agreement, or any Service

Agreement, the action of a governmental agency requires modification of the TC Service provided

hereunder so as to impair service to Customer, Customer may terminate such TC Service upon 30

days written notice to TC.

13. Nondisclosure. “Confidential Information” means any business and technical information

disclosed by either party to the other party, either directly or indirectly, in writing, orally or by

inspection of tangible objects (including without limitation concepts, designs, documents,

prototypes or samples), which is designated as “Confidential,” “Proprietary,” or some similar

designation or is disclosed under circumstances which indicate its confidential nature. Confidential

Information may also include third party confidential information. Confidential Information shall not

include any information which (i) was publicly known and made generally available in the public

domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made

generally available after disclosure by the disclosing party to the receiving party through no action

or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time

of disclosure by the disclosing party as shown by the receiving party’s files and records immediately

prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a

breach of such third party’s obligations of confidentiality; or (v) is independently developed by the

receiving party without use of or reference to the disclosing party’s Confidential Information, as

shown by documents and other competent evidence in the receiving party’s possession. Each party

agrees not to use any Confidential Information of the other party for any purpose except to perform

its obligations or exercise its rights under this Agreement. Each party agrees not to disclose any

Confidential Information of the other party to third parties or to such party’s employees, except to

those employees or consultants of the receiving party who are required to have the information.

Nothing in this Section precludes either party from disclosing the other party’s Confidential

Information as required by law or a legal process, provided that the party under a legal obligation

to disclose such Confidential Information gives the party whose Confidential Information is subject

to disclosure as much advance written notice of such potential disclosure as is possible in the

circumstances so that such party may seek confidential treatment of such Confidential Information.

Without limiting any of the foregoing, if the parties have signed a separate confidentiality, nondisclosure,

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or similar agreement (NDA), then such NDA is expressly incorporated herein by

reference and is specifically amended to provide that confidential information is able to be used by

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the parties for the purposes contemplated in this Agreement and the term of the NDA is extended

to be coterminous with the term of this Agreement.

14. Governing Law. This Agreement shall be construed and enforced in accordance with, and the

validity and performance hereof shall be governed by the laws of the State of Oklahoma. Any

action under this Agreement shall be brought in the appropriate federal or state court located Tulsa

County, Oklahoma, and each party hereby waives any objection to such jurisdiction.

15. Prevailing Party. If Suit is brought or an attorney is retained by either party to enforce the terms

of this Agreement or to collect any money as due hereunder or to collect any money damages for

breach hereof, the prevailing party shall be entitled to recover, in addition to any other remedy, the

reimbursement for reasonable attorneys’ fees, court costs, costs of investigation and other related

expenses incurred in connection therewith.

16. Relationship of Parties. Nothing in this Agreement will be deemed or construed to create any

relationship of principal and agent, partnership or joint venture between the parties. Solely to the

extent Customer licenses any Microsoft or other third-party Software from or through TC, Microsoft

and other third-parties are an intended third-party beneficiaries of the Service Agreement that

applies to such licenses, and Microsoft or other third-parties may enforce the provisions of that

Service Agreement and verify Customer’s compliance with it.

17. Further Assurances. Customer acknowledges and agrees that TC may amend this Agreement at

any time for purposes of compliance with applicable law, regulations, and requirements from

intended third-party beneficiaries including but not limited to Microsoft. Customer and TC agree to

cooperate in good faith to make any such amendments to this Agreement.

18. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto

and their respective successors and assigns. Customer shall not assign, delegate, or transfer any

of its rights or obligations hereunder without the prior written consent of TC, which shall not be

unreasonably withheld. TC may assign this Agreement to an affiliate or to a purchaser of

substantially all of the assets or equity of the business unit of TC responsible for the performance

of this Agreement.

19. Additional Provisions.

(a) This Agreement (including all Service Agreements, appendices, exhibits, attachments

and/or schedules attached hereto) constitutes the entire understanding between the

parties relating to the rights herein granted and the obligations herein assumed and

correctly sets forth the rights, duties, and obligations of each party to the other as of the

date of this Agreement. Any prior agreements, promises, negotiations or representations

regarding the subject matter of this Agreement are of no force or effect. This Agreement

shall not, however, affect or modify the terms or applicability of any other agreement

regarding other subject matters to which TC and Customer are parties. No alteration or

variation of the terms of any provision shall be valid unless made in writing and signed by

duly authorized representatives of TC and the Customer. If any one or more of the

provisions of this Agreement shall for any reason be held to be invalid or unenforceable,

the remaining provisions of this Agreement shall be unimpaired, and shall remain in effect

and be binding upon the parties. Service provided by TC is subject to the condition that it

will not be used for any unlawful purpose. No waiver of a breach of any provision of this

Agreement shall constitute a waiver of any other breach or of the future performance of

such provision.

(b) This Agreement commences on the Effective Date and continues until the expiration or

termination of the last remaining Service Agreement between the parties. Any provisions

of this Agreement that, in order to fulfill the purposes of such provisions, need to survive

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the termination or expiration of this Agreement, shall be deemed to survive for as long as

necessary to fulfill such purposes.

Page 85 of

Ninja (RMM tool) –

Welcome to the NinjaOne Web site (the “Site”). The Site has been developed exclusively

for use by NinjaOne partners, prospective partners, media, vendor partners and NinjaOne

employees. By using the Site, you agree to follow and be bound by the following terms

and conditions concerning your use of the Site (“Terms of Use”) and our Privacy Policy.

We may revise the Terms of Use and Privacy Policy at any time without notice to you.

Areas of the Site may have different terms of use posted. If there is a conflict between the

precedence with respect to your use of that area of the Site.

Use of Web Site Information

You may download, view, copy and print documents and graphics incorporated in these

documents (the “Documents”) from the Site subject to the following: (a) the Documents

may be used solely for personal, informational, non-commercial purposes; and (b) the

Documents may not be modified or altered in any way. Except where your use

constitutes “fair use” under copyright law, you may not otherwise use, download, upload,

copy, print, display, perform, reproduce, publish, license, post, transmit or distribute any

information from this Web site in whole or in part without the express authorization of

NinjaOne.

Use of Software

Any use of software and accompanying documentation you download from the Site is

subject to the terms of a software License Agreement between you and NinjaOne. You

must read the license agreement and indicate your agreement to its terms prior to

installing or using the software. All rights, title and interest not expressly granted are

reserved.

Third Party Web Sites, Content, Products and

Services

The Site provides links to Web sites and access to content, products and services from

third parties, including users, advertisers, affiliates and sponsors of the Site. You agree

that NinjaOne is not responsible for the availability of, and content provided on, third

party Web sites. You should refer to the policies posted by other Web sites regarding

privacy and other topics before you use them. You agree that NinjaOne is not responsible

for third party content accessible through the Site, including opinions, advice,

Page 86 of

statements and advertisements, and understand that you bear all risks associated with

the use of such content. If you choose to purchase any products or services from a third

party, your relationship is directly with the third party. You agree that NinjaOne is not

responsible for: (a) the quality of third party products or services; and (b) fulfilling any of

the terms of your agreement with the seller, including delivery of products or services

and warranty obligations related to purchased products or services. You agree that

NinjaOne is not responsible for any loss or damage of any sort you may incur from

dealing with any third party.

Disclaimer

EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE, THE SITE, AND ALL CONTENT,

MATERIALS, INFORMATION, SOFTWARE, PRODUCTS AND SERVICES PROVIDED ON THE

SITE, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NINJAONE EXPRESSLY

DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED,

INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY,

FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NINJAONE MAKES

NO WARRANTY THAT: (A) THE SITE WILL MEET YOUR REQUIREMENTS; (B) THE SITE

WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS;

SERVICES OFFERED THROUGH THE SITE WILL BE ACCURATE OR RELIABLE; OR (D) THE

QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL

PURCHASED OR OBTAINED BY YOU THROUGH THE SITE WILL MEET YOUR

EXPECTATIONS. ANY CONTENT, MATERIALS, INFORMATION OR SOFTWARE

DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS DONE

AT YOUR OWN DISCRETION AND RISK. NINJAONE SHALL HAVE NO RESPONSIBILITY

FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS

FROM THE DOWNLOAD OF ANY CONTENT, MATERIALS, INFORMATION OR SOFTWARE.

NINJAONE RESERVES THE RIGHT TO MAKE CHANGES OR UPDATES TO THE SITE AT ANY

TIME WITHOUT NOTICE.

Limitation of Liability

IN NO EVENT SHALL NINJAONE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL,

SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS,

REVENUE, DATA OR USE, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN

ACTION IN CONTRACT OR TORT, ARISING FROM YOUR ACCESS TO, OR USE OF, THE

SITE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF

LIABILITY. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Indemnity

Page 87 of

You agree to defend, indemnify and hold harmless NinjaOne, its officers, directors,

employees and agents from and against any and all claims, liabilities, damages, losses or

expenses, including reasonable attorneys’ fees and costs, arising out of or in any way

connected with your access to or use of the Site.

NinjaOne is concerned about your privacy and has developed a policy to address privacy

concerns. Click here to review the current privacy policy.

Note About Children

Minors are not eligible to use the Site, and we ask that they do not submit any personal

information to us.

Export Restrictions / Legal Compliance

You may not access, download, use or export the Site, or the content, software, products

or services provided on the Site in violation of U.S. export laws or regulations, or in

violation of any other applicable laws or regulations. You agree to comply with all export

laws and restrictions and regulations of any United States or foreign agency or authority,

and not to directly or indirectly provide or otherwise make available the services and

products of NinjaOne in violation of any such restrictions, laws or regulations, or without

all necessary approvals, including, without limitation, for the development, design,

manufacture or production of nuclear, chemical or biological weapons of mass

destruction. As applicable, you shall obtain and bear all expenses relating to any

necessary licenses and/or exemptions with respect to your own use of the services of

NinjaOne outside the U.S. Neither the services of NinjaOne nor the underlying

information or technology may be downloaded or otherwise provided or made available,

either directly or indirectly, (i) into Cuba, Iran, Libya, North Korea, Sudan, Syria or any

other country subject to U.S. trade sanctions, to individuals or entities controlled by such

countries, or to nationals or residents of such countries other than nationals who are

lawfully admitted permanent residents of countries not subject to such sanctions; or (ii)

to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals and

Blocked Persons or the U.S. Commerce Department’s Table of Denial Orders. By

agreeing to these Terms and Conditions of Use, you agree to the foregoing and

represents and warrants that you are not located in, under the control of, or a national or

resident of any such country or on any such list.

Page 88 of

Applicable Laws

All matters relating to your access to, and use of, the Site shall be governed by U.S.

federal law or the laws of the State of Delaware. Any legal action or proceeding relating

to your access to, or use of, the Site shall be instituted in a state or federal court in

Delaware. You and NinjaOne agree to submit to the jurisdiction of, and agree that venue

is proper in, these courts in any such legal action or proceeding.

NinjaOne is a registered trademarks of NinjaOne. Other names appearing on the Site

may be trademarks of their respective owners.

TrendMicro (AV) –

IMPORTANT: READ CAREFULLY. LICENSE/PURCHASE/USE OF TREND MICRO SOFTWARE

AND APPLIANCES BY BUSINESS, GOVERNMENTAL, AND OTHER LEGAL ENTITIES IS

SUBJECT TO THE FOLLOWING LEGAL TERMS AND CONDITIONS. A DIFFERENT TREND

MICRO AGREEMENT GOVERNS THE LICENSE/PURCHASE/USE OF TREND MICRO

PRODUCTS THAT ARE PUBLISHED BY TREND MICRO FOR NON-BUSINESS USE, PERSONAL

USE, HOME USE, AND/OR CONSUMER USE. TREND MICRO GLOBAL BUSINESS SOFTWARE

AND/OR APPLIANCE AGREEMENT Trial and Paid Use: This Business Software and Appliance

Agreement supersedes all prior versions published by Trend Micro with respect to transactions

consummated on or after the Publication Date Publication Date: 1 January 2021 Version: English/Multi-

Country IF COMPANY AND TREND MICRO HAVE ENTERED INTO A MANUAL/ELECTRONIC

SIGNATURE-BEARING CORPORATE LICENSE AGREEMENT (OR OTHER SIMILAR

DOCUMENT) WITH RESPECT TO THE LICENSE/SALE OF ANY TREND MICRO SOFTWARE,

APPLIANCE, OR MAINTENANCE, THEN SUCH AGREEMENT WILL GOVERN AND CONTROL

THE POSSESSION/USE OF ANY PRODUCTS LICENSED OR SOLD TO COMPANY

THEREUNDER AND THIS AGREEMENT WILL HAVE NO EFFECT WITH RESPECT THERETO.

OTHERWISE, THE TERMS AND CONDITIONS OF THIS AGREEMENT SHALL GOVERN AND

CONTROL COMPANY’S LICENSE/PURCHASE, POSSESSION, AND USE OF ALL PRODUCTS

ACQUIRED HEREUNDER. UNLESS PROHIBITED UNDER MANDATORY APPLICABLE LAW

WITHOUT THE POSSIBILITY OF WRITTEN WAIVER, IF COMPANY IS PRESENTED A

VERSION OF TREND MICRO’S TERMS AND CONDITIONS OF AGREEMENT (SUCH AS

“SHRINK-WRAP” OR “CLICK-WRAP” EULA OR SIMILAR DOCUMENT) THAT IS DATED

(EITHER EFFECTIVE DATE OR PUBLISHED DATE) PRIOR TO THE PUBLICATION DATE

HEREOF (EACH A “PRIOR VERSION”) THAT MAY APPEAR AND REQUIRE COMPANY’S

ACCEPTANCE DURING THE REGISTRATION/INSTALLATION/DEPLOYMENT OF SUCH

PRODUCT, THEN COMPANY AGREES THAT ITS ACCEPTANCE OF SUCH PRIOR VERSION

SHALLBE DEEMED TO BE ACCEPTANCE OF THIS AGREEMENTFOR ALLPURPOSES AND

SUCH PRIOR VERSION WILL BE MERGED INTO AND SUPERSEDED BY THIS AGREEMENT.

Any additional, conflicting, or different terms or conditions proposed by Company in any Companyissued

document (such as an Order), are hereby rejected by Trend Micro and excluded herefrom. 1. Entire

Agreement; Not a Master Purchase Agreement; Agreed Definitions. 1.1 Entire Agreement. This

Agreement is binding on Company and Trend Micro when referenced or incorporated in a Quote from

Page 89 of

Trend Micro or a Reseller that directs Company to the website at which this Agreement is posted and

Company places an Order for Products in response to such Quote that is accepted by Trend Micro by

issuance of a License Certificate to Company for the Ordered Products. If no such Quote is provided to

Company but nevertheless Company places an Order for Products with Trend Micro or a Reseller, the

Parties agree that such Order, if accepted by Trend Micro by issuance of a License Certificate to

Company for the Ordered Products, is licensed/sold on the terms and subject to the conditions set forth in

this Agreement (including all policies, procedures, and websites referenced herein) and the issued License

Certificate that is incorporated herein by reference and made a part of this Agreement for all purposes.

The Parties agree that this Agreement (including the Standard Contractual Clauses and Data Processing

Addendum that form a part hereof and set forth certain of the responsibilities of the Parties with respect to

GDPR Data) is the final, complete, and exclusive statement of the agreement of the Parties with respect to

the subject matter hereof, and any prior written agreements; representations, statements, or advertising of

Trend Micro whether oral or written; course of dealing between the Parties or usage of the trade; Orders;

or descriptions that are not specifically set forth in this Agreement with respect to the subject matter

hereof, are all merged into and superseded by this Agreement. In entering into this Agreement, each Party

represents and warrants to the other Party that it is NOT relying on any extrinsic representation, warranty,

covenant, promise, forbearance, or inducement of any kind or nature that is or was made by any person

that is not specifically set forth in this Agreement. By downloading, installing, deploying, and/or using

any Trend Micro Product obtained by Company for which a Trend Micro License Certificate is issued by

Trend Micro to Company, Company ratifies and confirms its agreement to this Agreement (including the

Standard Contractual Clauses, Data Processing Addendum, and the License Certificate) as the sole and

exclusive terms, conditions, limitations, and exclusions governing the purchase/license of such Products.

Direct questions, legal notices, and concerns regarding this Agreement to: legal_notice@trendmicro.com

1.2 Not a Master Purchase Agreement. Company acknowledges that this is NOT a master purchase

agreement for subsequent purchases of Products, but rather, this Agreement only applies to each instant

purchase/license of Products by Company. Each subsequent procurement/license of Products by Company

will be made subject to and conditioned on the agreement of the Parties to the then-current version of this

Agreement unless otherwise agreed in a writing signed by the Parties. 1.3 Procurement Under This

Agreement. Company may secure Products under this Agreement by one of three methods: a.

Procurement Through a Reseller. Typically, Company will secure a Quote for Products from a Reseller of

Trend Micro Products. Based on such Quote, Orders by Company will be sent to the Reseller at such

prices, discounts, and on invoice and payment terms as agreed solely by Company and its Reseller.

Company understands that if an Order is placed with a Reseller, the Reseller can place an order with

Trend Micro for Products (either directly through Trend Micro or through a Trend Micro distributor) as

requested by Company, but such Order is and will be subject to acceptance or rejection by Trend Micro at

its discretion. Based on documents submitted by the Reseller, Trend Micro will reject or accept the Order,

which acceptance is signified by Trend Micro’s issuance of its License Certificate. Except for the matters

agreed in the first sentence of this paragraph between the Reseller and Company, all other rights,

obligations, terms, conditions, limitations, and exclusions regarding Products that are Ordered by

Company are exclusively set forth in this Agreement. All payments by Company for Products will be

made directly to the Reseller and never to Trend Micro. Company acknowledges that each Reseller is an

independent contractor and in no event or circumstance will any Reseller now or hereafter be deemed a

joint venturer, partner, fiduciary, or agent of Trend Micro and NO Reseller has been or will be authorized

or permitted to have a right to create any binding obligation, responsibility, duty, liability, warranty,

guaranty, or any otherwise contract for or act on behalf of Trend Micro or waive or renounce any right of

Trend Micro or modify any right, obligation, or agreement of Company set forth in this Agreement. b.

Direct Purchase from Trend Micro. Company may (if permitted by Trend Micro) secure a Quote directly

from, and place an Order directly with, Trend Micro based on such Quote, which Order if accepted by

Trend Micro will be governed solely by the terms, conditions, limitations, and exclusions set forth in this

Agreement (including the License Certificate). All prices and payment terms will be as set forth in the

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Quote and all payments for Products will be made by Company directly to Trend Micro. c. Procurement

on a Store. Company may purchase a right to access and use (in accordance with Section 2.1(b)) certain

Products sold on and hosted by an Online Store Provider. In each such instance, Product is sold by such

Online Store Provider at prices determined by Trend Micro on payment terms determined by the Online

Store Provider, but such Products will be subject to and governed by this Agreement with such other

requirements as such Online Store Provider may impose in connection with Company’s use of its Store

and its services. 1.4 Agreed Definitions. In addition to initially capitalized definitions, descriptions,

clarifications, and agreements that may be set forth elsewhere in this Agreement (that include all policies,

procedures, and Trend Micro websites made a part hereof) that are referenced/incorporated herein, the

initially capitalized definitions, descriptions, clarifications, and agreements shall have the meanings set

forth in this Section 1.4 (each is an “Agreed Definition”) and all Agreed Definitions shall be equally

applicable to the singular, plural, and derivative forms. “Affiliate” means as to a Party, each person that is

Controlled by a Party, that Controls such Party, or that is under common Control with such Party.

“Control” means the direct or indirect ownership of more than fifty percent (50%) of the equity shares or

interests (or the maximum equity ownership permitted by Applicable Law if such Party is not permitted to

own more than 50%) entitled to vote for the directors or other management of such Party or the

equivalent, but only for as long as such ownership relationship continues to exist. Upon request, each

Party agrees to confirm in writing to the other Party, the status of any or all Affiliates. “Appliance” means

a hardware-based appliance designed and provided by Trend Micro as a Product that inseparably

combines Hardware and Integrated Software to form a single purpose, unified device that provides

capabilities, features, and functionalities as set forth in its Documentation. The Hardware portion of an

Appliance may be sold, leased, rented, or loaned hereunder, whereas the Integrated Software portion of an

Appliance is only licensed and never sold. “Appliance Differing Terms” shall have the meaning set forth

in Section 4. “Applicable Laws” means all mandatory national, federal, provincial, state, municipal, and

local laws, statutes, acts, ordinances, regulations, rules, codes, treaties, executive orders, supervisory

requirements, official directives, circulars, opinions, interpretive letters, and other official releases in the

Territory that are applicable from time-to-time to a Party’s performance of its obligations and/or exercise

of its rights hereunder, including, without limitation, data protection/privacy laws; corrupt

activities/illegal payment laws; economic/trade sanctions rules and regulations; and export/import laws.

“Communications” shall have the meaning set forth in Section 9. “Company” is the corporation,

company, or other legal entity (either public or private) that is listed on the License Certificate for such

Products as being the licensee/purchaser. In the event of conflict between an Order and a License

Certificate, the License Certificate shall control. “Company Data” means any data and information that is:

(a) automatically forwarded to Trend Micro-owned or –controlled servers by Company’s use of any

licensed Software or other Products; or (b) otherwise intentionally provided by Company to Trend Micro.

“Company’s Configuration” shall have the meaning set forth in Section 2.7. “Computer” means a Virtual

Machine or physical device that accepts information in digital or similar form and manipulates it for a

specific result based on a sequence of instructions, including without limitation mainframes, Servers,

workstations, desktop computers, laptops, tablets, mobile devices, telecommunication devices, Internetconnected

devices, and hardware products capable of operating a wide variety of productivity,

entertainment, business, security, and/or other software applications. “Confidential Information” shall

have the meaning set forth in Section 10. “Contractor” is an independent contractor that provides services

in support of Company and/or its Affiliates with respect to any Products provided hereunder pursuant to a

written agreement between such Contractor and Company that imposes an obligation (among other

obligations) on such Contractor to fully comply with this Agreement to the extent of access to, possession

of, and/or use of any Product by such Contractor. “Controlled Technology” shall have the meaning set

forth in Section 17. “Data Processing Addendum” or “Addendum” means Trend Micro’s Data Processing

Addendum (at http://www.trendmicro.com/en_us/about/legal-policy/data-processing-addendum or as may

be requested by Company from legal_notice@trendmicro.com) that is applicable if and to the extent

Trend Micro acts as a ‘processor’ or ‘sub-processor’ (as defined in the GDPR) for Company of GDPR

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Data. The Parties agree that the Data Processing Addendum is incorporated herein and made a part hereof

for all purposes on the terms and subject to the conditions and limitations set forth herein and therein.

“Delivery Date,” “Delivered,” and “Delivery.” The Delivery Date shall be: (a) for Software, it is the date

that Software is made available by Trend Micro for electronic download by Company, and/or (b) for

Hardware, the date of actual shipment to Company, but some Appliances may be subject to different

delivery terms as notified by Trend Micro. All Products and Maintenance will be deemed for all purposes

to be Delivered in the country of Trend Micro’s place of business stated in the License Certificate.

“Different Terms” shall have the meaning set forth in Section 3. “Documentation” means the printed,

electronic, and online technical documentation and operating instructions generally made available by

Trend Micro for Products provided for the purpose of supporting Company’s Internal Business Use of

such Products as authorized in Section 2.1. “End User” means any individual, entity, or person (directly or

indirectly through another user) that: (a) accesses or uses a Product licensed hereunder for Company’s

benefit in accordance with this Agreement such as Company’s Administrator(s), technical/support

resources, or Company’s employees/contractors whose access/use is in furtherance of its Internal Business

Use; or (b) otherwise accesses or uses such Product. “GDPR” means the European Union General Data

Protection Regulation with mandatory effect May 25, 2018 that is only applicable to Personal Data that is

subject to, regulated by, and protected under the GDPR and shall also include additional laws, rules, and

regulations now or hereafter promulgated by the European Union, any Member State, or other

governmental authority under or supplemental to the GDPR, as the same may be amended, supplemented

or replaced from time to time; and ‘controller,’ ‘processor,’ and ‘data subject’ shall have the meanings

respectively assigned to them in the GDPR. “GDPR Data” shall mean ‘personal data’ (as defined in Art.

4) under the GDPR that is made available or supplied by Company to Trend Micro pursuant to this

Agreement, if and only to the extent that the GDPR applies to Trend Micro with respect to its processing

of such Personal Data. “Global Privacy Notice” means Trend Micro’s Global Privacy Notice published

from time-to-time at https://www.trendmicro.com/en_us/about/legal/privacy-policy-product.html or as

may be requested by Company from legal_notice@trendmicro.com. “Government Agency” shall have the

meaning set forth in Section 18. “Hardware” means the hardware product that Integrated Software is

embedded in or preloaded on by Trend Micro and sold as an Appliance and all Documentation therefor.

“Instance” means an image of software on a physical device or Virtual Machine that is created by

executing the software’s setup or install procedure or by duplicating an existing Instance, and thereafter,

that Instance is “run” by executing one or more of its instructions. Once running, an Instance is running

(whether or not instructions continue to be executed) until it is removed from memory. “Integrated

Software” means the object code version of any Trend Micro-published/branded applications software

that is embedded in or preloaded on Hardware by Trend Micro to form an Appliance. Integrated Software

is licensed hereunder (and no right, title, or interest therein is sold) for a Subscription Period that is no

longer than the life of the Appliance and is not re-deployable to replacement Hardware except as may be

specifically permitted herein. “Internal Business Use” means the internal business access and use of

Product licensed hereunder solely by and for the direct benefit of Company specifically in connection

with the security, protection, and/or integrity of Company’s systems, networks, devices, documents,

emails, and/or other Company Data. “IP Claim” means any suit, cause of action, or other legal proceeding

filed/brought against Company by a third party in the courts of law, equity, or otherwise ONLY in the

Territory, that asserts that Software licensed hereunder directly infringes any patent, copyright, and/or

trademark of such third party. “License Certificate” means an written (electronic or otherwise)

acceptance/entitlement confirmation issued by Trend Micro to Company with the license/purchase of

Products that confirms to Company the Products purchased by Company, including the applicable

Licensed Capacity where applicable. The License Certificate and this Agreement forms the entire

agreement between Trend Micro and Company with respect to each Order of Products that is accepted by

Trend Micro. Company is advised to retain the License Certificate as proof of its entitlement to such

Products. “Licensed Capacity” is defined (includes quantity, licensing metric, and term of license) as and

notified in the License Certificate when Standalone Software is licensed hereunder, the number of licenses

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of each type of Standalone Software that Company purchases from time-to-time and is then-validly

licensed to Company under this Agreement, based upon Trend Micro’s licensing measurement for each

particular Standalone Software. The applicable licensing metrics/measurements (which may include,

without limitation, measurement by Computer/CPU, Virtual Machine, device, node, Instance, Server, and

user, as applicable) available to Company for Standalone Software licensed hereunder will be determined

by Trend Micro from time-to-time for each Product. “Licensing Entity” shall have the meaning set forth

in Section23. “Maintenance” of Software shall have the meaning and description set forth in Section 5.

Any maintenance or support of Hardware shall have the meaning and description set forth in applicable

Appliance Differing Terms. “Non-Production Environment” means Company’s use of an Appliance

and/or Software exclusively in a laboratory, test, or research environment (and not in Company’s

production environment/systems) that does not access or make use of live production data at any time or

for any reason. “Online Store Provider” means an entity that hosts an online marketplace or store (each a

“Store”) that offers for sale: (1) such entity’s infrastructure (IaaS) and/or platform (PaaS) hosting services

by separate agreement and a separately-stated service fee with the customer; together with (2) the

software applications of third party publishers (such as Trend Micro) that are offered and resold (for a

separately-stated royalty/fee) by such service provider entity for deployment on its infrastructure and/or

platform, but licensed to the customer by the publisher for a Subscription Period. With respect to the

access and use of any Trend Micro Standalone Software that is procured by Company on an Online Store

Provider’s store in accordance with Section 2.1(b), the Parties agree that the Online Store Provider is and

will be solely responsible to Company for its infrastructure and/or platform hosting services and Trend

Micro is solely responsible to Company for the Standalone Software and the Updating thereof. Examples

of such Stores are AWS Marketplace, Microsoft Azure, Google Marketplace/Launcher, and VMware

Marketplace. Unless stated to the contrary in the Store Purchase Exceptions published from time-to-time

at www.trendmicro.com, the Parties agree that the Licensing Entity for any Standalone Software

purchased from a Store and licensed under Section 2.1(b) is Trend Micro Incorporated as set forth in

Section 23.2 and not as may otherwise be determined by application and operation of Section 23 hereof.

“Open Source Software” means: (1) each and every third party software code/component that is

licensed/distributed under a license agreement approved by the Open Source Initiative or similar open

source or freeware license (and not this Agreement); and (2) is embedded or included in a Product

licensed hereunder; including any of the following Open Source Initiative-approved license agreements:

(a) GNU’s General Public License (GPL), Lesser/Library GPL (LGPL), and GNU Affero Public License;

(b) The Artistic License (i.e., PERL); (c) the Mozilla Public License; (d) the Netscape Public License; (e)

the Berkeley software design (BSD license including Free BSD or BSD-style license; (f) the Sun

Community Source License (SCSL); (g) an Open Source Foundation License (e.g., CDE and Motif UNIX

user interfaces); (h) the Apache Server license; or (i) the MIT License. For the avoidance of doubt, each

individual, third party software code/component of Open Source Software has its own copyright and its

own license agreement. “Optional Features” means optional (as may be configured, restricted, limited,

and/or disabled by Company in creation of Company’s Configuration) capabilities, features, and

functionality (such as the Smart Protection Network and/or Web Reputation Services, each as is more

fully described in its Documentation) of a Product licensed hereunder that, among other things, collects

and forwards certain Company Data (some of which may be Personal Data) for processing that is

necessary to permit Trend Micro to, among other things, provide the capabilities, features, and

functionality of such Product, including those that are optional, that Company deems necessary or

appropriate for its business needs in determining Company’s Configuration. “Order” means a

procurement document placed by Company (with a Reseller or Trend Micro, as the case may be) for the

procurement of Products to be supplied only in accordance with and subject to the provisions of this

Agreement. All Orders are Customer’s irrevocable commitment to purchase and pay for the Products

stated in the Order and are subject to direct or indirect (where the Order is placed with a Reseller)

acceptance by Trend Micro at its sole discretion, which acceptance occurs and is signified by Trend

Micro’s issuance of a License Certificate to Company for such Products or other Trend Micro

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performance (the “Order Effective Date”). “Party” means only each of the persons entering into this

Agreement and all other persons such as Affiliates and Contractors of each Party are third parties without

rights or benefits hereunder. “Personal Data” means one or more data elements relating to an identified or

identifiable natural person that can be used to identify, directly or indirectly, such natural person to the

extent such data is regulated, protected, restricted, or controlled under Applicable Laws (such as, for

example, the GDPR) for the protection of that natural person’s privacy and related rights. “Perpetual

Period” means with respect to a license granted for Standalone Software that extends for an indefinite

period of time, subject to earlier termination in accordance herewith. For the avoidance of doubt,

Standalone Software that is licensed for a Perpetual Period never includes a payment for, or a right to

receive without additional fees or compensation, Maintenance for the entire Perpetual Period. “Products”

means and includes Software, Appliances (including Hardware), and Maintenance that is

licensed/purchased hereunder, but does NOT include: (a) Trend Micro “software-as-a-service” and

“cloud-based” service offerings; or (b) PSP services or other premium, enhanced, managed, technical, or

engineering services or support that may be provided by Trend Micro pursuant to a separate agreement or

statement of work for additional compensation. Trend Micro specifically reserves the right from time to

time in its discretion and without incurring any liability to Company: to modify the design, specifications,

as well as functionality of any Product; and/or end-of-life (in accordance with Trend Micro published

policies) such Product “Quote(s)” means one or more documents issued by Trend Micro or its Reseller (as

the case may be) to Company specifying the Software, Appliance, and/or Maintenance that Company

seeks to obtain, the related pricing, payment terms, and Licensed Capacity and sufficient other

information to complete the transaction. Each Quote shall incorporate this Agreement (whether

specifically, by reference, or by publication) as the sole basis and governing document for any

procurement by Company based on the Quote. “Reseller” means a reseller, system integrator, independent

software vendor, VAR, OEM or other channel partner that is authorized by Trend Micro or its distributor

to secure orders for the license/sale of Products to end users, including Company. “Separate Modules”

means any plug-in or module for Software that Trend Micro determines to be new or a different

product/features/functionality that Trend Micro makes generally available to the public by license for new

or additional consideration. Separate Modules are not included with Maintenance or Updates to existing

Software. “Server” means a computer or device (and deployed software) on a network that provides

functionality, management, and/or support for other devices and/or other network resources, such as a

web server, file server, a database server, or a print server. “Software” means the object code version of

Integrated Software, Standalone Software, and Test Software and includes all Documentation and

Updates thereto made available to and purchased by Company. In no event or circumstance will a source

code version of any Software be offered, licensed, or otherwise provided hereunder to Company.

“Software Limited Warranty” shall have the meaning set forth in Section 11. “Standalone Software”

means the object code version of any applications software (and Updates thereto) that is published by and

is generally made available for license from Trend Micro hereunder that does not include any Hardware,

nor is it licensed by Trend Micro as part of an Appliance. Standalone Software also includes Instances

thereof that are licensed for deployment in a Virtual Machine environment. “Standard Contractual

Clauses” or “Clauses” or sometimes also referred to the “EU Model Clauses” means the Standard

Contractual Clauses (processors) published by the European Commission, which Standard Contractual

Clauses are attached to the Data Processing Addendum at http://www.trendmicro.com/en_us/about/legalpolicy/

data-processing-addendum or as may be requested by Company from

legal_notice@trendmicro.com. The Parties agree that the Standard Contractual Clauses are incorporated

herein and made a part hereof for all purposes on the terms and subject to the conditions and limitations

set forth herein and in the Data Processing Addendum, and in the event such Clauses are in conflict with

anything contained herein or the Addendum, such Clauses shall govern and control. The Parties further

agree that if a subsequent replacement version of the Clauses is published by the European Commission,

such replacement version will automatically replace the existing Clauses and apply mutatis mutandis;

provided, however, should Trend Micro at any time put in place other measures to ensure that the transfer

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is in compliance with the GDPR (such as becoming certified under Privacy Shield), the Parties agree that

the version of the Clauses then-in-effect between the Parties will automatically terminate and be

superseded by such other measures when those measures take effect. “Store” shall have the meaning as set

forth within the definition of Online Store Provider above. “Subscription Period” means, only if available

from Trend Micro for a specific version of Software, the limited term/increment of time (i.e., not a

Perpetual Period) that the Software is licensed for use by Company. Such Subscription Period may be

offered by the week, month, or year (not to exceed three (3) years), during which period, the licensee has

the right to use the Software (and receive Maintenance without additional cost) in accordance herewith.

After expiration of the Subscription Period, a new Subscription Period or Perpetual Period license must be

purchased in order to continue the use of the expired Software. Integrated Software is always licensed for

the limited Subscription Period that expires and terminates at the end of such Subscription Period,

unlesssuch license is earlier terminated in accordance with this Agreement such as when the unit of

Appliance on which such Software was originally installed is no longer deployed and used in accordance

with the Appliance’s Documentation. “Term” shall have the meaning set forth in Section 22. “Territory”

means worldwide other than Japan, subject always to and limited by the terms, conditions, waivers,

limitations, disclaimers, and exclusions in this Agreement, and present and future Applicable Laws that

applies to the Products and/or the performance of either Party hereunder that prohibits or restricts Product

sale, use, or access: (a) to certain technology/goods/services; (b) to specified countries; and/or (c) by

defined persons. “Test Period” shall have the meaning set forth in Section 7.1. “Test Software” shall have

the meaning set forth in Section 7.1. “Test Use” or a “Test” shall have the meaning set forth in Section

7.1. “Trend Micro” means in each instance that Products are acquired under this Agreement, the

Licensing Entity that provides Products in such instance as determined by application of Section 23.

“Virtual Machine” means a software container, implementation, or emulation of a Computer (i.e., a

physical device) that runs its own operating system and executes application programs like a physical

Computer. “Updates” means and includes if and when generally made available by Trend Micro with

respect to Software licensed hereunder that is also subject to then-paid Maintenance, new object code

versions (including patches) of such Software that includes: (a) improvement of features/functionality that

is used to identify, detect, and block computer viruses, spam, spyware, malicious code, websites, or other

forms of computer abuse generally categorized as malware and other forms of content identification or

categorization; (b) corrections, modifications, revisions, patches, new definition files, maintenance

updates, bug fixes and/or other enhancements to, or for use in connection with, the Software; and/or (c)

major or minor new versions of existing Software that contains new features, improvements to existing

features, capabilities, structures, and/or functionality that Trend Micro makes available to existing

customers that have then-purchased Maintenance for such Software; provided, however, the term

“Updates” specifically excludes Separate Modules and does not apply to the Hardware component of any

Appliance. The access to and use of certain new versions, features, and/or functionality that Trend Micro

may offer to make available to Company from time-to-time as an Update may be (at Trend Micro’s

determination) subject to and contingent upon Company’s prior agreement to additional terms and

conditions that are applicable to such new versions, features, and/or functionality. Updates that are

released by Trend Micro from time-to-time replace or patch and will become part of previously licensed

copies of the updated Software and will not increase the units/Licensed Capacity of Software licensed

hereunder, or otherwise create additional copies or licenses of such Software, nor does any Update create

any new or additional warranty for the Software it Updates. 2. Software License; Right to Copy;

Limitations 2.1 Software License. Products are protected by patent, copyright, trade secret, and/or other

worldwide intellectual property Applicable Laws. On the terms and subject to Company’s continuous

compliance with the conditions set forth in this Agreement (including the License Certificate) and on the

condition precedent of Company making payment as directed in Section 1.3, Trend Micro hereby grants

only to Company solely for the Internal Business Use of Company (and any of its Affiliates and/or

Contractors as it permits in accordance with Section 2.5), a non-exclusive, non-transferable (except as

may be a required for Standalone Software licenses in the European Union under mandatory Applicable

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Laws that do not permit a written waiver or limitation), non-assignable (by operation of law or otherwise),

and revocable (in accordance herewith) right and license (with no right to sublicense) in the Territory to:

(a) install or have installed (on Computers owned by or under the control of Company through written

agreement with a Contractor), access, and use Standalone Software only as permitted in its

Documentation, each of the foregoing for the stated Subscription Period (unless the License Certificate

states that such Standalone Software is being licensed for a Perpetual Period) and in such Licensed

Capacity as is listed in the License Certificate; (b) access and utilize (only as permitted in its

Documentation) for a Subscription Period for the Licensed Capacity purchased, Standalone Software

licensed hereunder that was purchased on a Store to be hosted (for separate service fee) by that Online

Store Provider on its infrastructure/platform under a separate service agreement between Online Store

Provider and Company; (c) use Integrated Software (only as permitted in its Documentation) forming a

part of any Appliance purchased hereunder only for such limited time (not for a Perpetual Period) as it

forms a part of the unit of Appliance that it is originally shipped by Trend Micro to Company; and/or (d)

with respect to any Software that offers Trend Micro cloud-hosted functionality and/or Optional Features

that have been selected in Company’s Configuration, Company may enable, access, and/or utilize such

cloud-hosted functionality and/or Optional Features portion (if any) in accordance with applicable

Documentation only: (i) during a Subscription Period for Software licensed for that limited term; or (ii)

during the first year of newly-Licensed Capacity of such Software licensed for a Perpetual Period and for

such time thereafter that Company purchases Maintenance for such Software. 2.2 Right to Copy. With

respect to Standalone Software licensed under Section 2.1(a) only, Company shall have the right to

reproduce, without additional cost, a commercially reasonable number of copies of the Standalone

Software (in an unmodified form) and its Documentation that is licensed to Company only for

backup/failover, archive, and/or training purposes, provided that Company reproduces on or in such

copies any and all of the copyright, trademark, patent, and other proprietary notices or markings that

appear on the original copy of the Standalone Software (and Documentation). No copy of Standalone

Software will be utilized for production purposes (other than backup/failover testing or archive retrieval)

except for such time as the production copy of such Standalone Software is not being utilized for

production use. 2.3 Limitations/Conditions. Except as may be specifically granted hereunder by license to

Company in this Section 2 or to the extent prohibited by or inconsistent with any Different Terms

licensing Open Source Software to Company, Company agrees that it is not licensed hereunder to and as a

condition hereunder, will not (or otherwise allow third parties to): (a) modify, adapt, alter, translate, or

create derivative works (as defined under Applicable Laws) from any part of any Software (or its

Documentation) or authorize others to undertake any of the foregoing prohibited acts; (b) merge or embed

any Software with or in other software, sub-routines, or other binary code segments; (c) reverse engineer,

reverse compile, decompile, or disassemble any Product or object code thereof, or otherwise attempt to

decrypt, decode or discover the source code or underlying ideas or algorithms of any Software or part

thereof, including but not limited to sub-routines, functions, libraries or other binary code segments of

Software except and only to the minimum extent required to be permitted with respect to interoperability

under mandatory Applicable Law without the possibility of waiver; (d) distribute, license, sublicense,

lease, sell, rent, loan, mortgage, encumber, auction, or otherwise transfer or provide a copy of any

Software (or components thereof including any license or access key or authorization) to any third party;

(e) publish, provide, or otherwise make available to any third party, any competitive, performance, or

benchmark tests or analysis relating to the Software without the written permission of Trend Micro which

may be withheld or conditioned at the sole discretion of Trend Micro; (f) deploy or use Software or

Appliance in any manner other than as expressly permitted in its Documentation; (g) permit any third

party to use or benefit from the use or functionality of any Product (alone or in combination with any

other product or service) via, for instance, third party outsourcing facility or service, service bureau

arrangement, time sharing basis, or as part of any other hosted or platform service that permits either

access to or use of any Products, whether on a specific fee basis or otherwise; or (h) attempt to do any of

the foregoing. Company understands and agrees that all Software and Appliances are subject to End-ofPage

96 of

Maintenance/Support policies forming a part Trend Micro’s policies referenced in Sections 4 and 5 below.

2.4 Use Exclusions. Products are not fault-tolerant/fail-safe and are not designed, intended, suitable, or

licensed hereunder for use, and may not be used, in situations or environments requiring extra safety

features or functionality for fail-safe or fault-tolerant performance, such as: (a) the design, construction,

operation, or maintenance of any nuclear facility, civil infrastructure such as power plants and

waterworks, manufacturing facilities, or industrial plants such as chemical refineries; (b) aircraft

navigation, communications, or operating systems; (c) air traffic control systems; (d) operation of lifesupport

or life-critical medical equipment; or (e) any other equipment or systems in which the

circumvention, unavailability, inaccuracy, ineffectiveness, or failure of the Product could lead or

contribute to death, personal injury, or physical property/environmental damage, and Trend Micro

specifically excludes any right or license for any such use and disclaims any express or implied

warranty/guarantee of fitness for any such use. Only as may be specifically set forth in the Documentation

therefor, Trend Micro notifies Company that no Product has been submitted for compliance testing,

certification, or approval for any use by any governmental agency and/or a self-regulatory, standardsetting,

or other industry/product-specific consensus organization. 2.5 Affiliate and/or Contractor Use;

BYOL. 2.5.1 Affiliate and/or Contractor Use. For no more than the Licensed Capacity purchased by or on

behalf of Company as evidenced in a License Certificate, Trend Micro grants Company the right to

authorize and permit (for no additional fees or amounts due Trend Micro other than the fees already

payable with respect to licenses purchased by Company): (a) Company’s Affiliates to access, deploy,

and/or utilize Products only in connection such Affiliate’s Internal Business Use for so long as such

person remains an Affiliate of Company; and (b) Contractors to Company and/or its Affiliates to access,

install, deploy, and/or utilize Products only in connection with the provision of business process support,

technical support, or outsourcing services to and solely for the use and benefit of Company and/or

Affiliates in connection with its and their Internal Business Use and not for the benefit of any third party

or such Contractor, all of the foregoing on the terms and subject to the limitations and conditions of this

Agreement. Each Affiliate and Contractor having access to, possession of, and/or utilization of any

Product will be considered an authorized user of Company under this Agreement with respect to such

Product and NOT a separate or additional licensee or otherwise having any rights or deemed to be a third

party beneficiary hereunder in any event or circumstance. Company agrees at all times to require, ensure,

and enforce compliance with the grants, terms, conditions, and limitations set forth in this Agreement as

well as the Data Processing Addendum and Standard Contractual Clauses where applicable by Company’s

Affiliates (including, without limitation, those applicable to the Affiliate’s GDPR Data that may be

exported outside of the EEA to Trend Micro by the Affiliate’s use of any Product licensed to Company)

and/or Contractors having access to Products procured hereunder and, further, Company agrees that it

shall at all times be and remain legally and financially responsible to Trend Micro for the compliance and

non-compliance with, or breach of, this Agreement and the Standard the Data Processing

Addendum/Contractual Clauses where applicable caused by any Affiliate or Contractor. For the avoidance

of doubt, since all Maintenance is to be provided by Trend Micro only to Company, no Affiliate and/or

Contractor will be entitled to request or receive Maintenance directly from Trend Micro. 2.5.2 BYOL. In

addition to the rights and obligations of Company in connection with Contractor use in Section 2.5.1, the

Parties agree that all or any portion of the Licensed Capacity of Standalone Software licensed for a

Perpetual Period (unless otherwise authorized in the applicable Documentation as being available for

Products that are licensed for a prepaid Subscription Period) pursuant to Section 2.1(a) that is subject to

then-current paid Maintenance may be deployed and hosted on the infrastructure/platform of a Contractor

in a Bring-Your-Own-License (BYOL) environment for the sole access, use, and benefit of Company

and/or its Affiliates in accordance herewith. In partial consideration for Trend Micro granting the

foregoing rights without the payment of additional monies, Company agrees that Trend Micro will have

no responsibility to Company in any event or circumstance for, or liability or otherwise subject to or liable

for any damages whatsoever to Company with respect to, the actions or inactions of any such Contractor

or breach of its agreement with Company. 2.6 Ownership; Compliance Tools. The Parties understand and

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agree that all Software is licensed and not sold hereunder. The Parties agree that, as between the Parties,

all Software and its Documentation, and all worldwide intellectual property rights therein or related

thereto, are the exclusive property of Trend Micro, its Affiliates, and/or its or their licensors/suppliers. All

rights in and to Software not expressly granted to Company in this Agreement are reserved by Trend

Micro and Company will have no other or different rights (implied, by estoppel, or otherwise) or

privileges with respect to any Software. Nothing in this Agreement will be deemed to grant, by

implication, estoppel, or otherwise, a license under any of Trend Micro’s existing or future patents or

other intellectual property rights. Trend Micro reserves the right to take any and all reasonable steps to

prevent unauthorized access to, and use of, Software by any person. Company acknowledges and agrees

that Trend Micro may utilize and deploy in connection with any or all Products: (a) registration or license

keys or authorization codes that are required for activation and/or renewal of each or all copies or use of a

Product; and/or (b) other compliance tools, processes, procedures, and /or controls to ensure that

Company has purchased full entitlement for Products it has deployed. 2.7 Use of Company Data. 2.7.1

Company Data Provided to Trend Micro; GDPR Data. Company understands and agrees that the

installation and/or use of each Product and the Maintenance thereof will require that Company provide or

make available Company Data (including any GDPR Data and/or Personal Data) to Trend Micro.

Company may: (a) as and to the extent stated or permitted in the applicable Documentation for a specific

Product, elect to set the Company Configuration (as discussed further in Section 2.7.2) of a Product to

automatically forward (without human command or intervention) certain Company Data (including any

GDPR Data and/or Personal Data) to Trend Micro-hosted or -controlled servers (for example, by enabling

certain Optional Features of a Product); and/or (b) intentionally provide certain Company Data (which

may also be GDPR Data and/or Personal Data) to Trend Micro in connection with (i) Product registration,

activation and/or deployment/redeployment of a Product, and/or (ii) Maintenance provided by Trend

Micro to Company in relation to such Product. Company authorizes Trend Micro to utilize Company Data

(that may also be GDPR Data and/or Personal Data) for the effective delivery of the features,

functionality, and benefits of Trend Micro’s Products, Maintenance, and other services to Company as

well as to further its understanding of, and improve, the usability, capabilities, and effectiveness of Trend

Micros’ Products, Maintenance, and other services for Company and other customers and business

partners of Trend Micro. For information on how Trend Micro utilizes Personal Data comprised in

Company Data, please see the Global Privacy Notice. By entering into this Agreement, each of Company

and Trend Micro acknowledges and agrees that it is also entering into and agreeing to be bound by: (1) the

Data Processing Addendum; and (2) the Standard Contractual Clauses, it being further agreed that each of

the Addendum and Clauses shall only apply, on the terms and subject to the conditions and limitations set

forth herein and therein, if and to the extent that Trend Micro acts as a processor or sub processor for

GDPR Data (but not other Company Data) that Company (and its Affiliates that have been authorized to

access, deploy, and/or utilize Products pursuant to Section 2.5) provides or makes available to Trend

Micro hereunder. If any Affiliates of Company utilize any Products, Company hereby enters into and

agrees to be bound by the Data Processing Addendum and the Standard Contractual Clauses for itself and

on behalf of each such Affiliate, and Company represents and warrants to Trend Micro that Company is

duly authorized, and Company and all such Affiliates have each taken, all necessary action to do so

validly. 2.7.2 Company’s Configuration of Optional Features. Company acknowledges and agrees that

selection (during activation/initial deployment and at all times thereafter) and use of Optional Features in

each Product is solely Company’s responsibility in connection with the creation of Company’s

Configuration of each Product and assuring that Company’s Configuration conforms to Company’s

requirements, policies, and procedures regarding any processing of Company Data (including any GDPR

Data and/or Personal Data) and complies with all Applicable Laws in each jurisdiction to which

Company’s processing of any Company Data may be subject (including any GDPR Data and/or Personal

Data) and/or from which Company is accessing and utilizing an Optional Feature of such Product.

Therefore, Company agrees to: (1) review the capabilities, features, and functionality of the Optional

Features in the Documentation thereof; and (2) configure, restrict, limit, and/or disable each Optional

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Feature in order to cause its Company Data to be utilized in a manner that meets Company’s specific

needs and Applicable Laws (each Product as configured by or on behalf Company from time-to time is

herein referred to as “Company’s Configuration”). Except for Optional Features and permissions and

administrative selections described in the Documentation, Company understands that each Product is a

standard off-the-shelf software or hardware-based appliance and no additional or different instructions or

configurations are available to Company for such Product. 2.8 Security Acknowledgement. Due to the

continual development of new techniques for intruding upon and attacking networks, systems, and/or

Computers, Trend Micro does not represent, warrant or guarantee: (1) that Products will detect, block, or

completely remove, or clean any or all applications, routines, and files that are malicious, fraudulent or

that Company does not use or want; or (2) that any Product or any data, equipment, system or network on

which a Product is used (or protects) will be free of vulnerability to intrusion or attack. Company agrees

that the success of security efforts and the operation and protection of its Computers, networks, and data

are dependent on factors solely under Company’s control and responsibility, including, but not limited to:

(a) the design, implementation, deployment, and use of hardware and software security tools in a

coordinated effort to manage security threats; (b) the selection, implementation, and enforcement of

appropriate internal security policies, procedures and controls regarding access, security, encryption, use,

and transmission of data; (c) development of, and ongoing enforcement of, processes and procedures for

the backup and recovery of any system, software, database, and any stored data; and (d) diligently and

promptly downloading and installing all Updates to Products made available to Company. 3. Open Source

Software. The Software may come bundled or otherwise be distributed with Open Source Software that is

subject solely to the agreement terms, conditions, limitations, and disclaimers of the specific license (each

“Different Terms”) under which such Opens Source Software is redistributed to Company by Trend

Micro and NOT this Agreement. Different Terms applicable to any Open Source Software redistributed in

any Software provided hereunder will be identified by Trend Micro in the Documentation for, and/or in a

“Read Me” or an “About” file in, the Software. OPEN SOURCE SOFTWARE IS PROVIDED BY

TREND MICRO “AS IS, WITH ALL FAULTS, AS AVAILABLE” WITHOUT (AND TREND MICRO

SPECIFICALLY DISCLAIMS) ANY GUARANTEE, CONDITION, OR WARRANTY (EXPRESS,

IMPLIED, OR OTHERWISE) OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO,

THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR

PURPOSE, SATISFACTORY QUALITY, TITLE, AND/OR NON-INFRINGEMENT.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, AS IT RELATES

TO ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH OPEN SOURCE

SOFTWARE, TREND MICRO SHALL HAVE NO LIABILITY FOR ANY DIRECT, INDIRECT,

INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWSOEVER CAUSED

AND/OR OTHERWISE BASED ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT,

STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY

WAY OUT OF THE USE OF OPEN SOURCE SOFTWARE, EVEN IF TREND MICRO HAS BEEN

ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 4. Appliances. Several Products available

hereunder are Appliances. As such, each Appliance has certain terms and conditions applicable thereto

that are in addition to, or different than, those set forth herein (all are “Appliance Differing Terms”). In

the event Company is licensing/acquiring/leasing/renting/testing/evaluating an Appliance hereunder,

Company agrees that the applicable Appliance Differing Terms are incorporated herein by reference and

made a part hereof for all purposes. Appliance Differing Terms may include, among other things: a

modified and/or different license grant and/or Maintenance for the Integrated Software that forms a part of

the Appliance; Hardware warranty and ownership; and/or a description of available maintenance and

support for Hardware and the Appliance in general. In the event of conflict between the terms and

conditions in the body of this Agreement, and those Appliance Differing Terms, the applicable Appliance

Differing Terms shall govern and control. Appliance Differing Terms are set forth at

https://www.trendmicro.com/en_us/about/legal/appliance-differing-terms.html as may be updated from

time-to-time and at any time. 5. Maintenance. All Standalone Software licensed for a limited term

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Subscription Period by Trend Micro includes paid Maintenance in the price of the license for the entire

Subscription Period that is purchased by Company. However, Standalone Software licensed for a

Perpetual Period hereunder includes Maintenance only for a period of one (1) year from Delivery of the

Standalone Software, thereafter, additional Maintenance then-offered by Trend Micro may be purchased

for Standalone Software in one (1) year increments. The description of Maintenance and Trend Micro’s

policies with respect to Standalone Software from time-to-time and at any time are set forth at

https://success.trendmicro.com/support-policies that are incorporated herein by reference and made a part

hereof for all purposes. The description of Maintenance and Trend Micro’s policies with respect to

Integrated Software are set forth in the Appliance Differing Terms. 6. Applicable Laws. To the extent

applicable to Company’s performance of its obligations and/or exercise of its rights hereunder (including

without limitation in relation to Company’s and its Affiliates’ (and its and their Contractors’) use and/or

configuration of any Product), Company represents (on an ongoing basis) and warrants to Trend Micro

and agrees that Company and its Affiliates’ (and its and their Contractors’) will: (1) comply with all

Applicable Laws (including, without limitation, the GDPR if and to the extent applicable) and will not use

or configure any Products or give any instructions to Trend Micro which would or could infringe, violate,

or otherwise not be in compliance with any Applicable Laws or could cause Trend Micro to do so; and (2)

identify, procure, and maintain any permits, certificates, approvals, consents, and inspections that may be

required or advisable in order to comply with Applicable Laws with respect hereto. If there is any failure

to comply with or breach of this Agreement arising out of or related to this Section, Company will

promptly (at no cost Trend Micro) do all things and take all actions as may be necessary or appropriate to

cure and correct any breach or noncompliance with any Applicable Laws. 7. Test/Evaluation of

Appliances and/or Software. 7.1 Test/Evaluation. If Standalone Software or Integrated Software is

provided to Company under this Agreement that has been identified by Trend Micro as “Evaluation,”

“Proof-of-Concept,” “Trial,” or “Test” Software (each a “Test Software”), then the provisions of this

Section 7 shall apply thereto and shall supersede any conflicting term or condition of this Agreement. In

each of the foregoing instances, Company is granted a royalty free, non-transferable, limited license to

install the Test Software on Computers located in the country of Delivery and owned (unless an

Appliance is provided by Trend Micro in connection with Test Use) by Company and only use the Test

Software for evaluation of such Test Software in a Non-Production Environment (a “Test Use” or a

“Test”) that is limited to thirty (30) days from the date the Test Software is Delivered to Company (or on

the date that an Appliance is shipped to Company by Trend Micro for a Test) unless otherwise agreed in

writing by Trend Micro (the “Test Period”). Sections 2.1, 2.2, and 2.5 of this Agreement do not apply to

Test Software, but Sections 2.3, 2.4, and 2.6 do apply to Test Software. If the Test Use involves an

Appliance (and Integrated Software), the Parties agree that the applicable Appliance Differing Terms sets

forth additional and/or different terms and conditions that are applicable to the Appliance and the

Integrated Software that forms a part of that Test Use Appliance. During the Test Period, Company may

be able to receive web or email based technical support in the country where Company is located, but

otherwise support is not generally available for Test Software or Appliances. 7.2 Exclusion; Limitation of

Liability for Test Software. TEST SOFTWARE AND ANY APPLIANCE MAY CONTAIN ERRORS

OR OTHER PROBLEMS THAT COULD CAUSE SYSTEM OR OTHER FAILURES AND DATA

LOSS. CONSEQUENTLY, TEST SOFTWARE IS PROVIDED TO COMPANY “AS IS, WITH ALL

FAULTS.” TREND MICRO SPECIFICALLY DISCLAIMS AND EXCLUDES ANY WARRANTY,

CONDITION, GUARANTEE, AND/OR LIABILITY TO COMPANY OF ANY KIND OR NATURE

WITH RESPECT TO TEST SOFTWARE AND ANY APPLIANCE ON WHICH THE TEST

SOFTWARE IS DEPLOYED. WHERE LEGALLIABILITY CANNOTBE EXCLUDED BY THIS

DISCLAIMER, BUT MAY BE LIMITED, TREND MICRO’S LIABILITY AND THAT OF ITS

SUPPLIERS/LICENSORS/RESELLERS UNDER THIS AGREEMENT RELATED TO TEST

SOFTWARE AND ANY APPLIANCE ON WHICH THE TEST SOFTWARE IS DEPLOYED, SHALL

BE LIMITED IN THE AGREEGATE TO THE SUM OF FIVE HUNDRED DOLLARS (USD$500.00)

OR THE EQUIVALENT IN LOCAL CURRENCY. Any information about the Test Software gathered

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from its access or use shall be used solely by Company for the test/evaluation and such information shall

not be provided to any third party. Notwithstanding anything contained herein, each Party has the right to

terminate any Test Use and the license herein granted at any time with or without reason with five (5)

days prior written notice to the other Party. Upon expiration of the Test Period or earlier termination as set

forth in this Section 7.2, Company agrees to automatically (and without notice or request from Trend

Micro) immediately stop using the Test Software and uninstall, delete, and irretrievably destroy all copies

of the Test Software and Documentation including those that may be included in any backup or archive

files and shall promptly confirm same to Trend Micro in writing. 8. Records; Audit. During the Term and

for two (2) years thereafter, Company agrees to retain and make available to Trend Micro accurate and

complete records and other system information sufficient to provide verification of the Licensed Capacity

of each Product licensed and Company’s utilization of Products is and has consistently been in

compliance with this Agreement. With at least twenty (20) days prior written notice, Trend Micro shall

have the right to cause an audit (by an internationally-recognized audit firm) to be conducted no more

frequently than once each calendar year. If an audit reveals any deployment or use of the Products that is

in excess of the Licensed Capacity or is otherwise out of compliance with this Agreement, then Company

agrees to promptly correct such non-compliance. If the Licensed Capacity for any unlicensed or excess

utilization of all Products audited hereunder is greater than, in the aggregate, ten percent (10%) of the

actual Licensed Capacity or licensed use for Products purchased by Company, Company agrees to

reimburse Trend Micro for its reasonable costs incurred in performing the audit. 9. Consent to Electronic

and Other Communications and Notices. Company agrees that Trend Micro may send Company required

legal notices and other communications about Products (including Updates), other and/or new Trend

Micro products and services, special offers and pricing or other similar information, customer surveys,

and other requests for feedback (collectively “Communications”). Trend Micro may provide

Communications via (among other methods): (a) in-person contacts by Trend Micro and/or Reseller

personnel; (b) in-Product notices or email to registered email addresses of named Company contacts;

and/or (c) posted Communications on its Websites. With respect to email notices, any such email notice to

Company will be sent by Trend Micro to the account administrator(s) named by Company during

registration. Company is responsible for ensuring that the email address for the Company’s account

administrator(s) is accurate and current. Any email notice that Trend Micro sends to the then-current

email address will be effective when sent, whether or not Company actually receives the email. By

accepting this Agreement, Company consents to receive all Communications through these means. 10.

Confidentiality/Non-Disclosure. Each Party hereto acknowledges that by reason of its relationship with

the other Party hereunder, it may have access to confidential information and materials concerning the

other Party’s business, technology, and/or products that is confidential to the other Party (“Confidential

Information”). Each Party’s Confidential Information is of substantial value to the Party, which value

could be impaired if such information was disclosed to third parties or used in violation of this

Agreement. Written or other tangible Confidential Information must at the time of disclosure be identified

and labeled as Confidential Information belonging to the disclosing Party. When disclosed orally or

visually, Confidential Information must be identified as confidential at the time of the disclosure, with

subsequent confirmation in writing within fifteen (15) days after disclosure. Each Party agrees that it will

not use in any way for its own account or the account of any third party, such Confidential Information,

except as authorized under this Agreement, and will protect Confidential Information at least to the same

extent as it protects its own Confidential Information and to the same extent that a reasonable person

would protect such Confidential Information. Neither Party may use the other Party’s Confidential

Information except to perform its duties or exercise its rights under this Agreement. The Confidential

Information restrictions will not apply to Confidential Information that is (a) already known to the

receiving Party at the time of access hereunder; (b) is or becomes publicly available through no wrongful

act of the receiving Party, (c) independently developed by the receiving Party without benefit of the

disclosing Party’s Confidential Information; (d) has been rightfully received from a third party not under

obligation of confidentiality; (e) disclosed in any legal proceeding arising from or in connection with this

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Agreement; or (f) required to be disclosed by law, provided the Party compelled to disclose the

Confidential Information provides the Party owning the Confidential Information with prior written notice

of disclosure (only if legally permissible) adequate for the owning Party to take reasonable action to

prevent such disclosure. Unless otherwise agreed to by both Parties, upon termination of this Agreement

or an applicable Addendum, each Party will return the other Party’s Confidential Information. In the event

that the Parties hereto have previously entered into a non-disclosure or confidentiality agreement that is

still in effect on the Order Effective Date of this Agreement, then the Parties hereto agree that such prior

agreement is hereby merged into and superseded by this Agreement ONLY with respect to the subject

matter hereof and the transactions undertaken pursuant hereto. 11. Limited Warranty – Software. 11.1

Limited Warranty. Trend Micro warrants to Company only that on the initial Delivery Date of any

Software licensed under this Agreement and for thirty (30) days after the Delivery Date therefor, that such

Software when installed on compliant/compatible hardware and only as permitted in and in accordance

with its Documentation, will substantially conform to its Documentation (the “Software Limited

Warranty”). Any replacement of non-conforming Software will be warranted for the remainder of its

original Software Limited Warranty period. In the event that any Software does not comply with the

foregoing warranty and such non-compliance is notified to Trend Micro within the warranty period, and if

Trend Micro is unable to bring any Software into conformity with the Software Limited Warranty after

using commercially reasonable efforts, either Company or Trend Micro may (at the discretion of each)

immediately terminate this Agreement for convenience (by giving written notice no later than ten (10)

days after the end of the Software Limited Warranty Period) only as to the non-conforming Software. In

the event the license is terminated as aforesaid, the license granted to Company to such Software

shallimmediatelyterminate. Upon receipt of Company’s certification thatithasirretrievablydestroyed such

terminated Software, Trend Micro shall refund to Company all fees paid by Company for the affected

Software. The applicable limited warranty provided by Trend Micro with respect to Integrated Software

forming a part of an Appliance is available as directed in Section 4. 11.2 Warranty Exclusions. The

Software Limited Warranty provided in this Section 11 does not apply to and shall be void: (a) in the

event of failure of any Software arising or resulting from improper installation or any modification,

alteration, or addition thereto, or any problem or error in the operating system software with which the

Software is installed and is designed to operate; (b) if any problem or error in the Software has resulted

from improper use, misapplication or misconfiguration, or the use of the Software with other programs or

services that have similar functions or features which are incompatible with the Software; (c) if the

Software is licensed as Test Software for which Trend Micro does not charge a royalty or license fee; or

(d) if Trend Micro does not receive notice of a non-conformity within the applicable warranty period. 11.3

Exclusive Remedy. The Parties agree that the rights, obligations, and remedies of the Parties in this

Section 11 are in lieu and satisfaction of any right of acceptance/rejection of any Software that Company

may have under Applicable Law and Company hereby waives and renounces any right of

acceptance/rejection of all Software, it being understood that Company is relying upon its rights under

this Section 11. The Parties agree that the warranties and remedies with respect to Software and

Maintenance set forth in this Section 11 shall constitute Trend Micro’s sole and exclusive obligation and

liability and Company’s sole and exclusive right and remedy for the breach of or Software nonconformance

with the Software Limited Warranty herein granted for any Software. COMPANY

UNDERSTANDS AND AGREES THAT TREND MICRO CANNOT, AND DOES NOT HEREIN,

PROVIDE ANY WARRANTY, GUARANTEE, CONDITION, OR ASSURANCE THAT THE

DEPLOYMENT/USE OF ANY SOFTWARE (EITHER BY ITSELF OR IN COMBINATION WITH

OTHER TREND MICRO PRODUCTS) WILL GUARANTEE/ASSURE COMPLETE/PERFECT

PROTECTION FROM AND AGAINST ALL PRESENT AND FUTURE SECURITY THREATS TO

COMPANY’S NETWORKS, SYSTEMS, DEVICES, AND/OR DATA AND NOTHING HEREIN THIS

AGREEMENT SHALL BE DEEMED TO IMPLY SUCH A WARRANTY, GUARANTEE,

CONDITION, OR ASSURANCE. 11.4 Disclaimer of All Other Conditions, Guarantees, and Warranties.

EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 11, COMPANY AGREES THAT TREND

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MICRO PROVIDES SOFTWARE “AS AVAILABLE” AND “AS IS, WITH ALL FAULTS” AND

WITHOUT ANY OTHER WARRANTY, CONDITION, UNDERTAKING, OR GUARANTEE OF

ANY KIND. TREND MICRO (ON BEHALF OF ITSELF AND ITS SUPPLIERS (BOTH HARDWARE

AND SOFTWARE)/LICENSORS/RESELLERS) EXPRESSLY DISCLAIMS ANY GUARANTEES,

CONDITIONS AND WARRANTIES (WHETHER STATUTORY, EXPRESS OR IMPLIED) ARISING

FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE, OR

OTHERWISE INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF:

MERCHANTABILITY; FITNESS FOR A PARTICULAR OR GENERAL PURPOSE; TITLE;

SATISFACTORY QUALITY; NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL

PROPERTY RIGHTS; ABILITY TO ACHIEVE A PARTICULAR RESULT; OR OTHERWISE

ARISING FROM A STATUTE, CODE, CUSTOM, USAGE OR TRADE PRACTICE, COURSE OF

DEALING OR PERFORMANCE, OR THE PARTIES’ CONDUCT OR COMMUNICATIONS WITH

ONE ANOTHER; OR ANY WARRANTY AGAINST INTERFERENCE WITH COMPANY’S QUIET

ENJOYMENT OF ANY SOFTWARE. COMPANY UNDERSTANDS AND AGREES THAT TREND

MICRO DOES NOT WARRANT OR GUARANTEE THAT: (a) SOFTWARE WILL BE

CONTINUOUSLY AVAILABLE OR USE THEREOF UNINTERRUPTED; (b) THE FUNCTIONS

AND FEATURES CONTAINED IN SOFTWARE WILL MEET THE REQUIREMENTS OF

COMPANY OR THAT SOFTWARE WILL SATISFY ANY PARTICULAR BUSINESS,

TECHNOLOGICAL, SERVICE, SECURITY, OR OTHER NEEDS OR REQUIREMENTS OF

COMPANY; (c) SOFTWARE, UPDATES THERETO, OR MAINTENANCE THEREOF ARE FREE

OF DEFECTS, PROBLEMS, BUGS, AND ERRORS OR THAT ALL DEFECTS, PROBLEMS, BUGS

OR ERRORS WILL BE DETECTED OR CORRECTED; (d) SOFTWARE WILL DETECT ONLY,

ANY, OR ALL SECURITY OR MALICIOUS CODE THREATS; OR (e) USE OF SOFTWARE AND

UPDATES WILL KEEP COMPANY’S NETWORKS OR COMPUTER SYSTEMS AND DEVICES

FREE FROM ALL VIRUSES OR OTHER MALICIOUS/UNWANTED CONTENT OR SAFE FROM

INTRUSIONS OR OTHER SECURITY ATTACKS/BREACHES. 12. Exclusions from and Limitation of

Liability; Maximum Liability. 12.1 Exclusions from Liability. IN NO EVENT OR CIRCUMSTANCE

AND UNDER NO LEGAL THEORY, WHETHER IN TORT (INCLUDING NEGLIGENCE),

CONTRACT, UNDER ANY CIVIL CODE, AND/OR ANY OTHER LEGAL OR EQUITABLE

THEORY, SHALL TREND MICRO, ITS AFFILIATES, OR ITS OR THEIR SUPPLIERS (BOTH

HARDWARE AND SOFTWARE)/LICENSORS/RESELLERS, BE LIABLE TO COMPANY OR ITS

AFFILIATES OR CONTRACTORS UNDER THIS AGREEMENT OR IN CONNECTION WITH ITS

SUBJECT MATTER FOR ANY CLAIMS, CAUSES OF ACTION, EXPENSES, LOSSES, OR

DAMAGES ARISING FROM OR RELATED TO: LOSS OF USE OF ANY NETWORKS, SYSTEMS,

SOFTWARE, HARDWARE, COMPUTERS, OR DEVICES; COMPROMISE, LOSS, OR

CORRUPTION OF DATA; LOST OR ANTICIPATED BUSINESS REVENUE; FAILURE TO

REALIZE EXPECTED SAVINGS; ANY THIRD PARTY CLAIM AGAINST COMPANY;

REDUCTION IN REPUTATION, OR GOODWILL; PROCUREMENT OF SUBSTITUTE GOODS,

SOFTWARE OR SERVICES; LOSS OF BUSINESS OPPORTUNITY OR ANTICIPATED SAVINGS;

OR OTHERWISE FOR ANY INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT, SPECIAL, OR

CONSEQUENTIAL DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, TREND

MICRO’S (OR ITS AFFILIATES) PERFORMANCE UNDER THIS AGREEMENT, OR ANY

PRODUCT, UPDATES, AND/OR MAINTENANCE, WHETHER OR NOT FORESEEABLE, EVEN IF

THE EXCLUSIVE REMEDIES PROVIDED BY THIS AGREEMENT FAIL OF THEIR ESSENTIAL

PURPOSE AND EVEN IF TREND MICRO AND/OR ITS AFFILIATES HAVE BEEN ADVISED OF

THE POSSIBILITY OR PROBABILITY OF SUCHDAMAGES. IF COMPANY IS IN THE

EUROPEAN ECONOMIC AREA, REFERENCES TO “INCIDENTAL, PUNITIVE, EXEMPLARY,

INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES” SHALL ALSO MEAN ANY LOSSES

OR DAMAGES WHICH: (a) WERE NOT REASONABLY FORESEEABLE BY BOTH PARTIES; (b)

WERE KNOWN TO COMPANY BUT NOT TO TREND MICRO; AND/OR (c) WERE

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REASONABLY FORESEEABLE BY BOTH PARTIES BUT COULD HAVE BEEN PREVENTED BY

COMPANY SUCH AS, FOR EXAMPLE, LOSSES CAUSED BY VIRUSES, MALWARE, OR OTHER

MALICIOUS PROGRAMS, OR LOSS OF OR DAMAGE TO COMPANY DATA. 12.2 Maximum

Liability – Direct Damages. WITH RESPECT TO THIS AGREEMENT AND THE SUBJECT MATTER

HEREOF OR TREND MICRO’S PERFORMANCE HEREUNDER, IN NO EVENT OR

CIRCUMSTANCE AND UNDER NO LEGAL THEORY, WHETHER BASED ON CONTRACT;

EXPRESS OR IMPLIED OR STATUTORY WARRANTY, CONDITION OR GUARANTEE;

MISREPRESENTATION; TORT (INCLUDING NEGLIGENCE); UNDER ANY CIVIL CODE;

AND/OR ANY OTHER OR EQUITABLE THEORY LEGAL THEORY, WILL TREND MICRO’S

LIABILITY TO COMPANY FOR ACTUAL DIRECT DAMAGES EXCEED IN THE AGGREGATE

FOR ALL CLAIMS (AND NOT PER INCIDENT OR PER CLAIMANT) AND/OR CAUSES OF

ACTION UNDER THIS AGREEMENT, THE TOTAL AMOUNT OF LICENSE FEES AND OTHER

AMOUNTS PAID OR PAYABLE BY COMPANY FOR THE PRODUCT GIVING RISE TO SUCH

CLAIM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT OR

CIRCUMSTANCE FIRST GIVING RISE TO A CLAIM. 12.3 Exceptions; Unenforceability.

NOTWITHSTANDING ANYTHING CONTAINED IN THIS SECTION 12 TO THE CONTRARY,

TREND MICRO’S LIABILITY SHALL NOT BE LIMITED UNDER THIS SECTION 12 IN THE

EVENT OR CIRCUMSTANCE OF: (a) PERSONAL INJURY OR DEATH DIRECTLY

ATTRIBUTABLE TO TREND MICRO’S NEGLIGENCE; (b) EVENTS OR CIRCUMSTANCES

ARISING FROM THE INTENTIONAL, WILLFUL, OR FRAUDULENT ACTS OF TREND MICRO;

(d) PAYMENT OF MONIES BY TREND MICRO UNDER ANY INDEMNITY AGREED HEREIN.

THE DISCLAIMERS, LIMITATIONS, AND EXCLUSIONS CONTAINED HEREIN THIS SECTION

12 SHALL APPLY TO THE MAXIMUM EXTENT PERMISSIBLE BY WRITTEN WAIVER,

DISCLAIMER, LIMITATION, AND/OR EXCLUSION UNDER THE GOVERNING LAW,

REGARDLESS OF WHETHER OR NOT TREND MICRO, ITS AFFILIATES, LICENSORS,

SUPPLIERS, AND/OR RESELLERS SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF

SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL

PURPOSE, BUT NOTHING HEREIN THIS SECTION 12 PURPORTS TO LIMIT TREND MICRO,

ITS AFFILIATES, LICENSORS, AND/OR SUPPLIERS LIABILITY TO THE EXTENT OR IN A

MANNER THAT WOULD BE IMPERMISSIBLE, UNENFORCEABLE OR VOID UNDER THE

GOVERNING LAW. 12.4 Basis of the Bargain. Each Party recognizes and agrees that the waivers,

warranty limitations, as well as disclaimers and exclusions from and limitations of liability and/or

remedies in this Agreement are a material and essential basis of this Agreement; reflect a reasonable

allocation of risk between the Parties; are fair, reasonable, and a fundamental part of this agreement; and

each has 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. The Parties

acknowledge and agree that absent any of such waivers, disclaimers, exclusions, and/or limitations of

liability/remedies, the provisions of this Agreement, including the economic terms, would be substantially

different, or in the alternative, this Agreement would not have been consummated. 13. Intellectual

Property Indemnity. 13.1 IP Claim Indemnity. Trend Micro (at its cost) will defend ONLY Company

from each IP Claim and indemnify Company from the resulting costs and damages with respect to each

such IP Claim finally awarded against Company ONLY that are specifically attributable to such IP Claim

or those amounts agreed to by Trend Micro in a monetary settlement of such IP Claim, subject always to

the conditions, qualifications and limitations in this Section 13. No settlement of any IP Claim will be

made by Company (and Trend Micro will have no responsibility or obligation hereunder or otherwise

therefor) without Trend Micro’s express written consent, which may be withheld at its sole and absolute

discretion. The obligation of Trend Micro under this Section 13 for any IP Claim is subject to and

conditioned on Company giving Trend Micro: (a) prompt written notice of any IP Claim (but in any event

notice in sufficient time for Trend Micro to respond without prejudice to its position), provided that a

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failure to provide notice shall only relieve Trend Micro of its indemnity obligation to the extent Trend

Micro was prejudiced by such failure; (b)sole and complete control and authority over the defense,

negotiations, and settlement of such IP Claim; and (c) reasonable requested information, cooperation and

assistance, at Trend Micro’s expense, with regard to the defense, negotiations, or settlement of such IP

Claim. Without Company’s consent, Trend Micro will not settle with respect to Company, any IP Claim

to the extent such settlement requires that Company admit any liability on the part of Company with

respect to such IP Claim or pay any money therefor. Company may participate in the defense of any IP

Claim at its cost with counsel of its selection. 13.2 Exclusions. Trend Micro will have no obligation under

this Section 13 or otherwise with respect to any IP Claims arising out of, based on, or related to the

following: (a) any use of the Software not in accordance with this Agreement or its Documentation; (b)

any modification of the Software not made by Trend Micro;(c) Trend Micro’s compliance with

Company’s design, equipment or software requirements,specifications orinstructions; (d) any use of any

version, revision, or enhancements of the Software by Company other than the most current noninfringing

release made available to Company at no charge if such current version would have avoided the

IP Claim; (e) any Open Source Software; or (f) any use of the Software in combination with other

products, equipment, software, services, data, or technology not specified by the applicable

Documentation where the IP Claim would not have arisen or would have been avoided but for such

combination. 13.3 IP Claim Mitigation. Should any Software at any time become, or in Trend Micro’s

opinion be likely to become, the subject of an IP Claim, Trend Micro shall have the right, at its sole option

to: (a) procure for Company the right to continue using the Software as licensed hereunder, or (b) modify

the Software such that it no longer is the subject of an IP Claim, while maintaining substantially the same

functionality of the unmodified Software. If neither (a) or (b) are commercially practicable in Trend

Micro’s opinion, Trend Micro may terminate this Agreement as to such Software and any related license

granted hereunder as to the Software upon written notice, in which event Company will cease further use

of the Software and return or uninstall and irrevocably destroy all copies of the subject Software (and

Documentation) and, thereafter, Trend Micro will promptly refund to Company, the prorated portion of

the license fees paid by Company for the remainder of any unexpired Subscription Period for such

Software(s) or, if and to the extent such Software are licensed for a Perpetual Period, Trend Micro shall

refund to Company all license fees paid by Company for the affected Software as amortized on a straight

line basis over a three (3) year period and any unused, prepaid annual Maintenance fees. The Parties agree

that any termination hereof in accordance with this Section 13 shall not be treated as a breach of this

Agreement by Trend Micro and shall not entitle Company to any claim for damages, losses, or expenses

of any kind or nature arising from or related to such termination including for replacement cost or loss of

use of the Software or any lost profits, savings, or revenue arising from or related to the Software. This

Section 13 states Trend Micro’s sole and exclusive obligation and liability to Company, and Company’s

sole and exclusive right and remedy against Trend Micro, for any IP Claim. Except as set forth herein this

Section 13, Company acknowledges and agrees that no indemnity is given by Trend Micro with respect to

any Software or Appliance and Trend Micro specifically denies and disclaims any obligation to indemnify

Company and/or its Affiliates from and against any other matter or thing in any event or circumstance. 14.

Personal Data. Company acknowledges that Products licensed hereunder may utilize applications, tools,

and procedures to, among other things, receive, collect, transfer, store, and use Company Data (some of

which may be GDPR Data and/or Personal Data). Trend Micro has implemented and will maintain

commercially reasonable technical, organizational and administrative security measures designed to

protect the Personal Data it processes for Company from unauthorized access and misuse while under

Trend Micro’s custody and/or control. Trend Micro restricts its personnel from processing of Personal

Data without proper authorization and imposes appropriate obligations upon its personnel, regarding

confidentiality, data protection, and data security of such Personal Data. For additional information on the

foregoing, please consult and review the Documentation for each licensed Product, Trend Micro’s Global

Privacy Notice, and the additional external information therein referenced in the Global Privacy Notice, as

well as Section 2.7 that is applicable to Company’s Personal Data in most instances. 15. Assignability.

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Subject to limited transfer rights of Standalone Software offered in Section 2.1, Company may not assign

all or any portion of this Agreement, whether by contract, operation of law or otherwise, to any person,

including any Affiliate, without written approval from Trend Micro, which approval may be withheld or

conditioned at the sole discretion of Trend Micro. Any purported assignment by Company shall be void.

Trend Micro may assign this Agreement, in whole or part, and delegate its obligations to qualified third

parties or Trend Micro Affiliates, provided that no delegation of its obligations shall relieve Trend Micro

of its obligations under this Agreement. 16. Waiver; Severability; Enforcement. 16.1 Waiver. A Party’s

failure or delay in enforcing any provision of this Agreement will not operate as a waiver of the right to

enforce that provision or any other provision of this Agreement at any time. No waiver of any provision of

this Agreement will be valid unless in writing, specifying the provision to be waived, and signed by the

Party agreeing to the waiver. 16.2 Severability; Enforcement. The unenforceability of any provision or

provisions of this Agreement shall not impair the enforceability of any other part of this Agreement. In the

event that any provision of this Agreement conflicts with the governing law under which this Agreement

is to be construed or if any such provision is held invalid or unenforceable in whole or in part by a court

with jurisdiction over the Parties, such provision shall be deemed to be restated to the minimum extent

necessary to render it valid, enforceable, and insofar as possible, reflect as nearly as possible the original

intentions of the Parties. The remaining provisions of this Agreement and the application of the

challenged provision to persons or circumstances other than those as to which it is invalid or

unenforceable shall not be affected thereby, and each such provision shall be valid and enforceable in

accordance herewith. 17. Export/Import Control. The export or re-export of Software (and related

technical data and services) and/or an Appliance (collectively “Controlled Technology”) is subject to

Applicable Laws with respect to the export (including “deemed export” and “deemed re-export”

regulations) and import of Controlled Technology by Company and/or its Affiliates. Company agrees that

it will at all times comply with each Applicable Law (now or hereafter in effect) that applies to

direct/indirect export, re-export, or import of Controlled Technology by Company and/or its Affiliates

and/or the performance of Company and/or its Affiliates hereunder that: (a) requires a license to, or

otherwise prohibits the, export, re-export, import, diversion, or disclosure of such Controlled Technology;

(b) prohibits or restricts sale, use, or access to certain technology/goods/services, to specified countries,

and/or by defined persons; or (c) restricts or prohibits end-use of such Controlled Technology related to

the development, production, use, or proliferation of nuclear, chemical or biological weapons, missiles, or

other weapons of mass destruction. Company represents and warrants to Trend Micro that neither

Company nor any of its Affiliates are under the control of, located in, or a resident or national of any

country or region subject to any embargo or applicable trade sanction and are not a prohibited person or

entity as defined in any Applicable Law. 18. Government Agency Use. All Products (including Software

and Appliances) and accompanying Documentation have been developed solely at private expense by

Trend Micro and/or its suppliers/licensors/resellers, consisting of commercially-available computer

software, commercially-available hardware and appliances, and commercially-available documentation.

The acquisition, deployment, duplication, disclosure, and use of Software (as Updated) by any

Government Agency may be subject to mandatory Applicable Laws, however, except for the limited

license granted in Section 2 above to any Software, no right, title, or interest in or to any Software (or

Updates and Documentation) is granted or transferred hereunder to any Government Agency licensing

such Software. If any Government Agency requires or needs greater or different rights in or to Software

other than those rights that are granted in Section 2, the Parties will discuss such additional requirements

and the additional fees/charges applicable thereto, and if additional or different rights are agreed, the

Parties will enter into a specific written agreement with respect thereto. In this Section, “Government

Agency” shall mean a national, federal, provincial, state, municipal, and/or local governmental agency or

entity in the Territory that acquires Products from Trend Micro under this Agreement for use by such

Government Agency. 19. WEEE Directive. Trend Micro complies with the WEEE regulations. For

information on the disposal of electronic waste, visit http://uk.trendmicro-europe.com/recycle. 20. Force

Majeure. If a Party’s performance of any non-monetary obligation under this Agreement is prevented by

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earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, cyber-attacks, armed conflict,

labor strike, lockout, or boycott, the affected Party will be excused from such performance, provided the

affected Party: (a) provides prompt written notice of such interference, the nature of such interference and

the expected duration of such interference to the other Party; (b) takes all steps reasonably necessary

under the circumstances to mitigate the effects of the interfering condition; and (c) resumes performing its

affected obligations hereunder promptly following the removal of such interfering condition. The other

Party will be relieved from performing its affected obligations under this Agreement for the duration of

such interference. Such delay or failure shall not constitute a breach of this Agreement. 21. No Third

Party Beneficiaries. To the maximum extent permissible by written waiver, disclaimer, limitation, and/or

exclusion under Applicable Laws, this Agreement is entered into solely between and for the benefit of,

and may be enforced only by, the Parties hereto and no third party shall have any right/benefit hereunder,

whether arising hereunder, under any statute now or hereafter enacted (such as Contracts (Rights of Third

Parties) Act of 1999 in the UK and similar laws enacted in Ireland, Singapore, New Zealand, Hong Kong

S.A.R., and certain states of Australia, the application of each of which is hereby barred and disclaimed),

or otherwise. This Agreement does not, and shall not be deemed to, create any express or implied rights,

remedies, benefits, claims, or causes of action (legal, equitable or otherwise) in or on behalf of any third

parties including employees, independent consultants, agents, and Affiliates of a Party, or otherwise create

any obligation or duty to any third party; provided, however, notwithstanding anything contained herein

this Agreement to the contrary, Trend Micro’s hardware suppliers, software licensors, and Resellers shall

be intended third party beneficiaries for the exclusions, limitations, and disclaimers with respect to

Products as stated in Sections 7.2, 11.4, and 12 of this Agreement. 22. Term; Expiration/Termination.

This Agreement and the license rights granted hereunder to: (1) any Standalone Software or Test Software

licensed for a Subscription Period shall remain in effect until the term of the license (as may be reflected

on the applicable License Certificate) automatically expires; but (2) any Standalone Software (and any

Updates thereto purchased by Company) that is licensed for a Perpetual Period shall continue to be

licensed indefinitely hereunder (each a “Term”); provided, however, the Term is subject to earlier

termination by either Party as set forth in this Section or elsewhere in this Agreement. Company may

terminate this Agreement as to any or all Software licensed hereunder for any or no reason, effective upon

notice to Trend Micro. Trend Micro may terminate this Agreement to any or all Software licensed

hereunder, effective upon written notice to Company, if Company, materially or persistently breaches this

Agreement asto such Software and such breach: (a) isincapable of cure such as breach of, or

noncompliance with, Trend Micro’s intellectual property rights; or (b) if being capable of cure (such as

non-payment of monies then-past-due to Trend Micro or a Reseller for Product), remains uncured for

fourteen (14) days after Trend Micro provides notice of such breach to Company. In addition, Trend

Micro may, at its option, terminate this Agreement as to any or all Software licensed hereunder if

permitted under Applicable Law, effective immediately, if Company files, or has filed against it, a petition

for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes orseeks to make a

general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a

trustee, receiver, or custodian for a substantial part of its property. Upon expiration or earlier termination

of this Agreement as to all or a portion (as the case may be) of Software licensed hereunder, the licenses

granted hereunder to such expiring or terminating Software (and its Documentation) shall immediately

terminate, and Company shall immediately cease use thereof and will uninstall and destroy all copies of

the Software (and Documentation) and certify the same to Trend Micro in writing. No expiration or

termination shall affect Company’s obligation to pay all charges and fees that may have become due

before such expiration or termination, or entitle Company to any partial or full refund of amounts already

received by Trend Micro, except as specifically set forth in Sections 11.1 and 13.3. 23. Trend Micro

Licensing Entity; Governing Law; Dispute Resolution; Arbitration; Venue/Jurisdiction. 23.1 General;

Trend Micro Licensing Entity. The Parties agree that the specific Trend Micro entity that is the Party to

this Agreement for each individual transaction shall be the Trend Micro entity/Affiliated that is stipulated

below and such entity shall be conclusively be deemed for all purposes, to be the Trend Micro Party to

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this Agreement and to the Data Processing Addendum, and the publisher/licensor of Software,supplier of

Appliances, and/or provider of Maintenance, that is procured by Company hereunder (in each instance,

the “Licensing Entity”). The Parties agree that the governing law (without giving effect to its rules and

principles relating to conflict of laws) as determine and agreed in this Section 23 shall solely and

exclusively apply to and govern, interpret, and sets forth all of Trend Micro’s and Company’s respective

rights, duties, and obligations arising from, or relating in any manner to, the subject matter of this

Agreement and the Products provided/secured hereunder. The United Nations Convention on Contracts

for the International Sale of Goods does not apply to, and is specifically excluded from application hereto,

in any event orcircumstance. 23.2 North America: If Company is located (as evidenced by the License

Certificate) in the United States of America or Canada, the Licensing Entity of Product is stipulated as:

Trend Micro Incorporated, 225 E. John Carpenter Freeway, Suite 1500, Irving, TX 75062, USA. The

Parties agree that this Agreement is solely and exclusively governed by the laws of the State of New

York, USA. The Parties agree that the provisions of the Uniform Computer Information Transactions Act

(“UCITA”), as it may have been or hereafter may be in effect in any jurisdiction, shall not apply to this

Agreement, and the Parties waive any and all rights they may have under any laws(s) adopting UCITA in

any form. The Parties mutually agree to and do hereby irrevocably submit and consent to the sole and

exclusive in personam jurisdiction of: (a) the United States District Court for the Southern District of New

York, located in the County of New York, but if such court shall determine that it does not and cannot

have subject matter jurisdiction over such action, matter, or proceeding; then to, (b) the Supreme Court of

the State of New York, located in the County of New York that will have such sole and exclusive in

personam jurisdiction over such action, matter, or proceeding. In Canada, the following language shall

apply hereto: The Parties have required that this Agreement be drawn up in English and have also agreed

that all notices or other documents required by or contemplated in this Agreement be written in English.

Les Parties ont requis que cette convention soit rédigée en anglais et ont également convenu que tout avis

ou autre document exigé aux termes des présentes ou découlant de l’une quelconque de ses dispositions

sera préparé en anglais. 23.3 Central America and South America (except Brazil and Colombia). If

Company is located (as evidenced by the License Certificate) in Central America or South America (other

than Brazil and Colombia), the Licensing Entity of Product is stipulated as: Trend Micro Latinoamérica,

S. A. de C. V., Insurgentes Sur No. 813, Piso 11, Col. Nápoles, 03810 México, D. F. The Parties agree

that this Agreement is solely and exclusively governed by the federallaws of the Republic of Mexico. The

courts located in Mexico City, Federal District, shall each have exclusive jurisdiction over all disputes

arising out of or relating to this Agreement or its subject matter. 23.4 Brazil. If Company is located (as

evidenced by the License Certificate) in Brazil, the Licensing Entity of Product is stipulated as: Trend

Micro do Brasil, LTDA, Rua Joaquim Floriano, 1.120 – 2º andar, CEP 04534-004, São Paulo/Capital,

Brazil. The Parties agree that this Agreement is solely and exclusively governed by the federal laws of

Brazil. The courts located in São Paulo, Brazil shall each have exclusive jurisdiction over all disputes

arising out of or relating to this Agreement or its subject matter. 23.5 Colombia. If Company is located (as

evidenced by the License Certificate) in Colombia, the Licensing Entity of Product is stipulated as: Trend

Micro Colombia, S.A.S., Calle 97ª# 9ª -50 of. 503, Bogotá, Colombia. The Parties agree that this

Agreement is solely and exclusively governed by the laws of Colombia. The courts located in Bogotá,

Colombia shall each have exclusive jurisdiction over all disputes arising out of or relating to this

Agreement or its subject matter. 23.6 Europe (as limited below) and Israel: If Company is located (as

evidenced by the License Certificate) in European Economic Area (EEA), the United Kingdom if such be

necessary for post-Brexit separation, Switzerland, or Israel, the Licensing Entity of Product in all

instances is stipulated as: Trend Micro Ireland Limited, a company incorporated in Ireland under number

364951and having its registered office at IDA Business and Technology Park, Model Farm Road, Cork,

Ireland. The Licensing Entity and Company referenced in this Section 23.6, agree that this Agreement, the

performance of the Parties hereunder, and all disputes arising out of or related hereto will be governed by

and construed solely in accordance with the laws of Ireland. The Parties irrevocably consent and agree to

the sole and exclusive in personam jurisdiction of the courts sitting in Ireland with respect to any dispute

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that cannot be resolved by the Parties and all proceedings with respect thereto shall be litigated and

determined solely and exclusively in such courts. Each of the Parties represents and agrees that such in

personam jurisdiction is reasonable and fair and hereby waives any objection which it may now or

hereafter have based on improper venue or forum non conveniens in such courts. 23.7 Russia, Turkey,

Middle East (other than Israel) and Africa: If Company is located (as evidenced by the License

Certificate) in Russia, Turkey, Africa, or the Middle East (other than Israel), the Licensing Entity of

Product in all instances is stipulated as: Trend Micro DMCC, a limited liability company incorporated in

United Arab Emirates having its registered office at Unit 3301, Swiss Tower, Plot No: JLT-PH2-Y3A,

Jumeirah Lakes Towers, Dubai, United Arab Emirates. The Licensing Entity and Company referenced in

this Section 23.7, agree that this Agreement, the performance of the Parties hereunder, and all disputes

arising out of or related hereto will be governed by and construed solely in accordance with the laws of

England and Wales. The Parties irrevocably consent and agree to the sole and exclusive in personam

jurisdiction of the courts sitting in England with respect to any dispute that cannot be resolved by the

Parties and all proceedings with respect thereto shall be litigated and determined solely and exclusively in

such courts. Each of the Parties represents to the other Party and agrees that such in personam jurisdiction

is reasonable and fair and hereby waives any objection which it may now or hereafter have based on

improper venue or forum non conveniens in such courts. 23.8 Asia Pacific: If Company is located (as

evidenced by the License Certificate) in Australia, New Zealand, India, Malaysia, the Philippines, or

Thailand, the Licensing Entity of Product in all instances is stipulated as: Trend Micro Australia Pty

Limited, Level 15, 1 Pacific Highway, North Sydney, New South Wales, 2060, Australia. If Company is

located (as evidenced by the License Certificate) in Singapore, Vietnam or Indonesia, the Licensing Entity

of Product in all instances is stipulated as: Trend Micro Singapore Pte Ltd., 6 Temasek Boulevard #16-01

Suntec Tower Four, Singapore. If Company is located (as evidenced by the License Certificate) in

Taiwan, Republic of Korea, Hong Kong SAR, or Macau SAR, the Licensing Entity of Product in all

instances is stipulated as: Trend Micro Inc., 8F, No.198, Tun-Hwa S. Road, Sec. 2, Taipei 106, Taiwan,

Republic of China. If Company is located (as evidenced by the License Certificate) in the Peoples

Republic of China, the Licensing Entity of Product in all instances is stipulated as: Trend Micro (China)

Inc., R23, 14F, No.800 Shangcheng Rd., Pudong District, Shanghai, China 20020. .1 If Company is

located (as evidenced by the License Certificate) in Australia or New Zealand, this Agreement is

governed by the laws of New South Wales, Australia. The Parties agree that the courts located in New

South Wales shall have exclusive jurisdiction over all disputes arising out of or relating to this Agreement

or its subject matter. Notwithstanding anything contained in Section 11 of this Agreement, if the

Australian Competition and Consumer Act 2010 is applicable to the instant transaction (and not otherwise

subject to an effective exclusion or waiver under Section 11) and Trend Micro is in breach of a guarantee

implied by such Act, Trend Micro’s liability is limited to the repair or replacement of goods/software or

the supply of equivalent goods/software, or the payment of the cost of replacing the goods/software or

having the good/software repaired where reasonable. Where a guarantee relates to the right to sell, quiet

possession, or clear title of a good/software under schedule 2 of the Competition and Consumer Act, then

none of these limitations apply. .2 If Company is located (as evidenced by the License Certificate) in

Hong Kong SAR or Macau SAR, this Agreement is governed by the laws of Hong Kong SAR. The

Parties agree that the courts located in Hong Kong SAR shall have exclusive jurisdiction over all disputes

arising out of or relating to this Agreement or its subject matter. .3 If Company is located (as evidenced by

the License Certificate) in Taiwan, this Agreement is governed by the laws of Taiwan, without regard to

its principles of conflicts of law. The Parties agree that the courts located in Taiwan shall have exclusive

jurisdiction over all disputes arising out of or relating to this Agreement or its subject matter. .4 If

Company is located (as evidenced by the License Certificate) in the Republic of Korea, this Agreement is

governed by the laws of the Republic of Korea. The Parties agree that the courts located in the Seoul

Central District Court of the Republic of Korea shall have exclusive jurisdiction over all disputes arising

out of or relating to this Agreement or its subject matter. .5 If Company is located (as evidenced by the

License Certificate) in Singapore, India, Indonesia, Malaysia, the Philippines, Vietnam, or Thailand, this

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Agreement and the agreement to arbitrate is governed by the laws of Singapore, without regard to its

principles of conflicts of law. The following Irrevocable Mandatory Agreement to Arbitrate with respect

to matters set forth in and governed by this Section 23.8.5 (only) is hereby irrevocably agreed by the

Parties: a. The Parties irrevocably agree that each controversy, dispute, or claim in any way arising from,

pertaining to, or in connection with this Agreement, any Products, or the performance/non-performance of

both or either Party (each a “Dispute”) will be solely and exclusively resolved by mandatory and binding

arbitration that is administered by Singapore International Arbitration Center (“SIAC”) which will be held

and conducted in Singapore in accordance with the Arbitration Rules of Singapore International

Arbitration Center (″SIAC Rules″) on the Publication Date. The arbitration award will be final and

binding for the Parties without appeal and will be in writing and set forth the findings of fact and the

conclusions of law. In arriving at their award, the arbitrators shall make every effort to find a solution to

the Dispute in the language of this Agreement and shall give full effect to all provisions hereof. However,

if a solution cannot be found in the language of this Agreement, the arbitrators shall exclusively apply the

substantive law of Singapore existing on the Publication Date hereof and are specifically divested by the

Parties of any power or authority to: (i) apply any principles that would permit them to ignore this

Agreement, or (ii) apply the law of any jurisdiction other thanSingapore. b. The number of impartial

arbitrators will be three (3), with each Party being entitled to appoint one arbitrator. The two (2)

arbitrators appointed by the Parties will appoint a third arbitrator (who must be a lawyer with a

multinational law firm and have a minimum of ten (10) years of experience in the field of computer

software development, licensing, and distribution) who will act as chairman of the proceedings, or if no

agreement is reached by such arbitrators within twenty (20) days of the last to be appointed, then the post

of chairman will be filled by the president of SIAC at the request of either Party. Vacancies in the post of

chairman will be filled by the president of SIAC in accordance with the SIAC Rules. Other vacancies will

be filled by the respective nominating Party. Proceedings will continue from the stage they were at when

the vacancy occurred. c. If one of the Parties refuses or otherwise fails to appoint an arbitrator within

thirty (30) days of the date the other Party appoints its arbitrator, the Parties irrevocably agree that the first

appointed arbitrator will be the sole arbitrator, provided that such arbitrator was validly and properly

appointed in accordance with the SIAC Rules unless such sole arbitrator appointment shall be void or

voidable under SIAC Rules, in which event a sole arbitrator having the qualifications of the chairman will

be appointed by the president of SIAC in accordance with the SIAC Rules. d. All proceedings will be

conducted, including all documents presented in such proceedings, in the English language. The English

language version of this Agreement prevails over any other language version. .6 If Company is located (as

evidenced by the License Certificate) in the People’s Republic of China, this Agreement is governed by

the laws of China, without regard to its principles of conflicts of law. The following Irrevocable

Mandatory Agreement to Arbitrate with respect to matters set forth in and governed by this Section 23.8.6

(only) is hereby irrevocably agreed by the Parties: a. The Parties irrevocably agree that each Dispute

arising from or related to this Agreement, any Products, or the performance/nonperformance of both or

either Party will be finally settled by arbitration that is administered by Beijing Arbitration Commission

(“BAC”) which will be held and conducted in Beijing in accordance with the Arbitration Rules of Beijing

Arbitration Commission (“BAC Rules”) on the Publication Date. The arbitration award will be final and

binding for the Parties without appeal and will be in writing and set forth the findings of fact and the

conclusions of law. b. The number of arbitrators will be three (3), with each Party being entitled to select

one arbitrator or authorize the chairman of the BAC to appoint one arbitrator. The third arbitrator shall be

selected jointly by the Parties or nominated by the chairman of the BAC in accordance with a joint

mandate given by the Parties. The third arbitrator shall be the presiding arbitrator. c. All proceedings will

be conducted, including all documents presented in such proceedings, in the Simplified Chinese language.

The Simplified Chinese language version of this Agreement prevails over any other language version.

23.9 Other Countries in the Territory Not Listed Above. If Company is located in any country or region

not listed in any other subsection of this Section 23 (as evidenced by the License Certificate), the

Licensing Entity of Product in each instance is stipulated as the Trend Micro Affiliate stated in the

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License Certificate. In each such instance, the Parties agree that this Agreement, the performance of the

Parties hereunder, and all disputes arising out of or related hereto will be governed by and construed

solely in accordance with the laws of England and Wales. The Parties irrevocably consent and agree to the

sole and exclusive in personam jurisdiction of the courts of England with respect to any dispute that

cannot be resolved by the Parties and all proceedings with respect thereto shall be litigated and

determined solely and exclusively in such courts. Each of the Parties represents to the other Party and

agrees that such in personam jurisdiction is reasonable and fair and hereby waives any objection which it

may now or hereafter have based on improper venue or forum non conveniens in such courts. 23.10

Provisional Remedies; No Waiver. Notwithstanding the Parties agreement to arbitrate in Sections 23.8.5

or 23.8.6 as the case may be, a Party may apply at any time to any court or courts having jurisdiction over

the relevant Party or Parties for an order (that is NOT dispositive or final of any Dispute), including, but

not limited to, an ex parte temporary restraining order, temporary injunction proceedings, or other

provisional or interim/ancillary remedies or equitable relief (each a “Temporary Action”) seeking

protection: (1) of its Confidential Information provided hereunder as described in Section 10; or (2) from

a breach of or non-compliance with any Software license grant in Section 2 of this Agreement or from

infringement, misappropriation, or a violation of such applying Party’s intellectual property rights

forming a part of any Product or otherwise, including any and all rights protectable under intellectual

property laws anywhere in the world such as (by way of example) patent, copyright, trade secret, and

trademark law; provided, however, no such Temporary Action shall be a final disposition of any matter to

be submitted to arbitration nor it shall compromise, limit, or avoid the sole and exclusive right of the

arbitrators to decide and finally dispose of all Disputes subject to arbitration hereunder, including, without

limitation, granting temporary or permanent relief of the subject of any request for Temporary Action.

The institution and maintenance of a Temporary Action shall not be deemed an election of remedies or

constitute a waiver or abrogation (in whole or in part) of the agreed right and obligation of each Party,

including the plaintiff in any arbitration or Temporary Action, to submit each and every Dispute to

arbitration, nor supersede or render inapplicable (all or in part) the agreed compulsory arbitration

provisions of this Agreement. End of the Agreement.

Hornetsecuirty

END USER LICENSE AGREEMENT

IMPORTANT! READ CAREFULLY. THE FOLLOWING IS A LEGALLY BINDING

AGREEMENT.

Version: [1.3]

Date: 1st July 2022

This License Agreement (“License”) is a legal agreement between you (End-User or

you) and HORNETSECURITY LIMITED, a limited liability company organized and

existing under the laws of Malta, located at Hornetsecurity Limited, Block LS3 (Digital

Hub), Level 1, Malta Life Sciences Park, San Gwann Industrial Estate, San Gwann,

SGN3000, Malta (Hornetsecurity, Licensor, us or we). These terms shall regulate the

use of Hornetsecurity’s product and software solution that are listed in the relative

order form, or otherwise accompany this EULA (“the Licensed Software”), and our

respective rights and obligations.

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BEFORE YOU SELECT THE “I ACCEPT” BUTTON AT THE BOTTOM OF THIS WINDOW,

CAREFULLY READ EACH PROVISION OF THIS AGREEMENT. BY CLICKING ON THE “I

ACCEPT” BUTTON AND/OR DOWNLOADING OR INSTALLING THE LICENSED

SOFTWARE YOU WARRANT AND REPRESENT THAT:

• YOU ARE OVER THE AGE OF 18, YOU ARE OF THE LEGAL AGE REQUIRED IN YOUR

STATE, PROVINCE, JURISDICTION OR RESIDENCE AND YOU ARE LEGALLY CAPABLE

OF ENTERING INTO THIS AGREEMENT; • YOU HAVE THE CAPACITY AND AUTHORITY

TO BIND YOURSELF AND/OR THE PERSON/ENTITY IN WHOSE NAME THIS LICENSE

IS BEING PURCHASED, AS APPLICABLE, TO THE TERMS AND CONDITIONS OF THIS

AGREEMENT;

• ON BEHALF OF YOURSELF AND/OR AS AN AUTHORISED REPRESENTATIVE OF THE

PERSON/ENTITY IN WHOSE NAME THIS LICENSE WAS PURCHASED, AS

APPLICABLE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS

AGREEMENT

• YOU ARE A BUSINESS USER AND THAT YOU ARE ACTING IN A BUSINESS OR

PROFESSIONAL CAPACITY. YOU ARE NOT ABLE TO USE OUR LICENSED SOFTWARE

IF YOU ARE DEEMED TO BE A CONSUMER IN TERMS OF CONSUMER LAWS. IF ANY

OF THE FOREGOING WARRANTIES AND REPRESENTATIONS DO NOT APPLY TO

YOU OR IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE TERMS AND

CONDITIONS OF THIS AGREEMENT, THEN YOU ARE LEGALLY BOUND TO CHOOSE

THE “I DECLINE” BUTTON. IN SUCH CASE, YOU MAY NOT RECEIVE, INSTALL OR USE

THE LICENSED SOFTWARE. ANY USE OF THE LICENSED SOFTWARE OTHER THAN

PURSUANT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT IS A VIOLATION

OF COPYRIGHT LAWS AND CONVENTIONS. IF YOU QUALIFY AS A CONSUMER FOR

THE PURPOSES OF THE CONSUMER AFFAIRS ACT (CHAPTER 378 OF THE LAWS OF

MALTA), YOU ACKNOWLEDGE THAT UPON DOWNLOADING THE LICENSED

SOFTWARE ONTO YOUR CHOSEN MEDIUM YOU RELINQUISH YOUR RIGHT TO

WITHDRAW FROM THE CONTRACT ACCORDING TO LAW. BY CLICKING THE “I

AGREE” BUTTON BELOW YOU ARE ACCEPTING THIS LIMITATION TO YOUR RIGHT

TO WITHDRAW FROM THE CONTRACT UPON DOWNLOADING THE LICENSED

SOFTWARE. IF YOU DO NOT DOWNLOAD THE LICENSED SOFTWARE

IMMEDIATELY, YOUR RIGHT TO FREELY WITHDRAW FROM THIS AGREEMENT IS

LIMITED TO FOURTEEN (14) DAYS FROM CLICKING THE “I ACCEPT” BUTTON

BELOW.

IF YOU CHOOSE THE “I DECLINE” BUTTON, OR IF YOU ARE A CONSUMER AND YOU

WITHDRAW FROM THIS AGREEMENT AS EXPRESSLY AUTHORISED AS PER THE

ABOVE, YOU MAY RETURN THE LICENSED SOFTWARE TO THE AUTHORISED

RESELLER OR DEALER FROM WHOM YOU OBTAINED IT FOR A FULL REFUND, OR

CONTACT THE LICENSOR THROUGH ITS CUSTOMER CARE PROCEDURE ON ITS

WEBSITE, PROVIDED THAT YOU DO SO WITHIN THIRTY (30) DAYS FROM THE DATE

OF YOUR PURCHASE AND THE LICENSED SOFTWARE IS ACCOMPANIED BY ALL

ORIGINAL DOCUMENTATION, PACKAGING MATERIALS AND PROOF OF PURCHASE.

OPERATING SYSTEM REQUIREMENTS: The Licensed Software will only operate on

hardware and systems that meet certain requirements as indicated and listed on the

Licensor’s website at https://support.hornetsecurity.com These requirements may be

changed from time to time. It is in your interest to ensure that your operating system

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meets the published requirements at all times.

1. Preamble. The Licensed Software is proprietary to the Licensor and is protected by

accompanying documentation is licensed, not sold to you pursuant to the terms and

conditions of the End User License Agreement (“EULA”). The Licensor will remain the

owner of the Licensed Software and documentation at all times.

2. Grant of License Rights.

2.1. Production License – Subject to your payment of the applicable license fee and

full compliance with this Agreement, the Licensor grants to you the following rights:

(a) A non-exclusive and non-transferable license to install and use a single copy of

the executable code version of the Licensed Software, including any modifications,

corrections or updates supplied to you by Licensor upon installation or under a

Maintenance/Support program and all associated user manuals, release notes,

installation notes, and other materials delivered with the Licensed Software in

printed or electronic formats (“Documentation”) on a single workstation or server,

without restriction to the number of individual “stand alone” backup drives (e.g., tape

drives, optical drives, etc.) connected to said single workstation or server unless your

purchased Production license expressly stipulates that it provides you with

additional features;

(b) The above right shall be perpetual, save for (i) termination as a result of your

breach of these terms and

(ii) the case where you are licensed under a Service Provider License Agreement

(“SPLA”), where the duration of the right will be limited to the subscription period or

as may be further regulated under the SPLA terms of the specified solution;

archival purposes, backup or business continuity, provided you reproduce all the

original Licensed Software’s proprietary matter including without limitation

Matter”) contained in the original copy of the Licensed Software and Documentation

and a notice that it will not be used for transfer, distribution or sale.

2.2. Software Evaluation and Beta License

(a) We may make the Licensed Software, a part or feature thereof available as a prerelease

or beta version (“Beta Version”). You expressly acknowledge that by their

nature, such Beta Versions are work-inprogress and as a result they may contain

bugs, cause systems to crash or result in data loss. You agree to stop using such Beta

Versions when we request you to do so.

(b) Notwithstanding anything to the contrary contained in this EULA, if you are using

a Beta or an Evaluation / Trial version of the Licensed Software and Documentation,

your rights to use the Licensed Software and Documentation shall be subject to the

following limitations:

i. your non-exclusive, non-transferable right to use and evaluate the Licensed

Software and Documentation shall terminate thirty (30) days from the date of your

initial installation of the Licensed Software (the “Evaluation License Period”) or as

alternatively defined within the Beta or Early Access program;

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ii. the Licensed Software and Documentation are furnished to you “AS IS” without

warranty of any kind, including, but not limited to, implied warranties of quality and

fitness for a particular purpose;

iii. the Licensed Software and Documentation may be used solely for Non-

Commercial / Non-Production evaluation by you;

iv. the Licensed Software and Documentation are licensed to you without fee only for

the Evaluation License Period;

v. no rights of ownership, copyright or other intellectual property in the Licensed

Software are being transferred to you;

vi. at no time shall you transfer the Licensed Software or Documentation to any third

party; and,

vii. you agree to and do hereby indemnify, defend and hold harmless the Licensor

and its parent,

subsidiary, or affiliate organizations, officers, agents, suppliers, distributors and

authorized re-sellers from any and all claims, losses, damages and expenses

(including reasonable attorneys’ fees, legal expenses and court costs) asserted by any

third party due to or arising out of your breach of any provision of this EULA, your use

of the Licensed Software and Documentation for evaluation

purposes, your negligent or wrongful acts, and/or your violation of any applicable

laws.

and 2.2 (b) above shall

apply to Software licensed under an Evaluation or Beta License.

2.3 Free license

(a) On occasions, we may designate that a version of the Licensed Software is

provided for free (i.e. without payment of any license fee) (“Free Version”).

(b) The use of a Free Version is subject to any terms that are outlined in the

respective software description page or solution terms made available by the

Licensor.

production environment in accordance with the terms and conditions of this

Agreement and notwithstanding anything to the contrary contained in this EULA, a

Free Version shall be subject to the following limitations:

i. the Free Version and Documentation are furnished to you “AS IS” without warranty

of any kind, including, but not limited to, implied warranties of quality and fitness for

a particular purpose;

ii. the Free Version and Documentation are licensed to you without fee;

iii. you may not use the Free Version to provide services to third parties, integrate

with third party software, or to process third party data. Free license versions can be

used without additional purchase.

iv. no rights of ownership, copyright or other intellectual property in the Free Version

are being transferred to you;

v. you are not entitled to support and maintenance or that Licensor provide any

assistance regarding Free Version;

vi. you agree to and do hereby indemnify, defend and hold harmless the Licensor

and its parent, subsidiary, or affiliate organizations, officers, agents, suppliers,

distributors and authorized re-sellers from any and all claims, losses, any direct,

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actual or indirect damages and expenses (including reasonable attorneys’ fees, legal

expenses and court costs) asserted by any third party due to or arising out of your

breach of any provision of this EULA, your use of the Free Version and

Documentation, your negligent or wrongful acts, and/or your violation of any

applicable laws.

(d) All terms and conditions of this EULA not specifically modified by clause 2.3 (a), (b)

and (c) above shall apply to Free Versions.

2.4 “Not for Resale” license

(a) We may also choose to make Licensed Software or certain features thereof

available for demonstration, test or internal use only purposes labelled as “Not for

Resale” (collectively “NFR Software”). The license granted under an NFR License shall

be for a term of one (1) year (the “Demonstration Period”) unless otherwise altered by

Licensor, limited specifically for demonstration, test or internal use only purposes.

Notwithstanding anything to the contrary contained in this EULA, if you acquired the

NFR Software and Documentation, your rights to use the NFR Software and

Documentation shall be subject to the following limitations:

i. you agree not to use NFR Software for resale purposes or to offer the solution for

your customers;

ii. you may not use the NFR Software to provide services to third parties, integrate

with third party software, or to process third party data.

iii. no rights of ownership, copyright or other intellectual property in the NFR

Software are being transferred to you;

iv. you agree to and do hereby indemnify, defend and hold harmless the Licensor

and its parent, subsidiary, or affiliate organizations, officers, agents, suppliers,

distributors and authorized re-sellers from any and all claims, losses, any direct,

actual or indirect damages and expenses (including reasonable attorneys’ fees, legal

expenses and court costs) asserted by any third party due to or arising out of your

breach of any provision of this EULA, your use of the NFR Licensed Software and

Documentation, your negligent or wrongful acts, and/or your violation of any

applicable laws.

(b) All terms and conditions of this EULA not specifically modified by clause 2.4 (a)

above shall apply to NFR Software.

3. Restrictions.

(a) The Licensed Software may include software components licensed to the

Licensor by third-parties, which may be subject to terms and conditions that are

different than those outlined herein. [If you would like to receive a full list of such

components, please get in touch with Hornetsecurity (Clause 17)]. You shall be

required to comply with any and all such third-party terms that apply.

(b) Notwithstanding the terms and conditions of this EULA, all or any portion of the

Licensed Software which constituted non-proprietary software provided under

public licenses by third parties (“Freeware” or “Open Source”), is licensed to you

subject to the terms and conditions of the software license agreement

accompanying such Freeware or Open Source software whether in the form of a

discrete agreement, shrink wrap license or electronic license terms accepted at the

time of download. Use of the Freeware or Open Source software by you shall be

governed entirely by the terms and conditions of such license.

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i. copy the Licensed Software and Documentation except as provided in clause 2

above modify, translate, rent, lease, copy, re-sell, transfer, assign, sub-license,

distribute, merge, vary or modify the Licensed Software and Documentation or any

part thereof to any person or entity;

ii. make alterations to, or modifications of, the whole or any part of the Licensed

Software or permit the Licensed Software or any part of it to be combined with, or

become incorporated in, any other programs or software solutions without a written

approval from Us.;

iii. save where you are expressly authorised to do so under a SPLA and within the

limitations of such SPLA, use the Licensed Software or Documentation in connection

with a service bureau or similar activity whereby you operate or use the Licensed

Software or Documentation for the benefit of a third party who has not purchased a

copy of the Licensed Software;

iv. remove Proprietary Matter from the Licensed Software and Documentation or

modify, alter or obscure Proprietary Matter thereon;

v. to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make

error corrections to the Licensed Software in whole or in part except as permitted by

law. Provided that where you require the aforementioned information and/or code in

order to achieve the interoperability of a computer program independently created

by yourself, you shall first request the Licensor to provide such information (at the

then applicable commercial rates). Any information and/or code so obtained

(whether provided by the Licensor or independently procured) shall not:

1. be used for purposes other than to achieve the interoperability of the computer

program independently created by you;

2. be given to other persons, except when necessary for the interoperability of the

independently created computer program;

3. be used for the development, production or marketing of a computer program

substantially similar in its expression to the original program or for any other act

which infringes copyright;

4. provide, or otherwise make available, the Licensed Software in any form, in whole

or in part (including but not limited to, program listings, public sharing website,

object and source program listings, object code and source code) to any person

other than your employees without prior written consent from us;

5. use the Licensed Software via any communications network or by means of

remote access;

6. fail to comply with all applicable technology control or Export Restrictions

(Clause10)

(d) If you are a corporation or other business entity, you shall use your best efforts to

prevent your employees, customers, contractors, subcontractors and agents from

engaging in any of the above prohibited activities and to supervise and control the

use of the Licensed Software by the said persons and ensure that the Licensed

Software is used by such employees, customers, subcontractors and

agents in accordance with the terms of this License.

(e) Although you own the media on which the Licensed Software and

Documentation are recorded, the Licensor and/or its suppliers retain all rights, title

and interest in and to (i) the Licensed Software and Documentation (including,

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without limitation, images, photographs, animations, video, audio, music, text and

so-called “applets”), (ii) all copies, improvements, enhancements, modifications and

derivative works of the Licensed Software or Documentation, and (iii) all patents,

copyrights, trade secrets, trademarks and other intellectual property rights

subsisting in the Licensed Software and Documentation and copies, improvements,

enhancements, modifications and derivative works thereof.

(f) Your rights to use the Licensed Software and Documentation shall be limited to

those expressly granted in clause 2 above. All rights not expressly granted to you are

retained by Licensor and/or its suppliers. You agree to refrain from any action that

would diminish such rights of the Licensor or would call such rights into question.

The rights granted herein are limited to the Licensor’s copyright in the Software and

do not include any other patents or intellectual property rights of the Licensor or

third parties.

(g) You hereby agree to, and do, indemnify, save and hold harmless the Licensor, its

agents, suppliers, distributors and authorised resellers from any and all damages,

liabilities, costs and expenses (including reasonable attorneys’ fees, legal expenses

and court costs) arising out of or connected with any claim, demand or proceeding

which relates in any way to your use of the Licensed Software and Documentation in

a manner not explicitly authorised by this EULA.

(h) Any failure to comply within clause 3 or any other term or condition contained in

this EULA shall result in the automatic termination of this license and the reversion

of the rights granted hereunder to the Licensor.

4. Limited Warranties.

(a) Subject to the limitations and exclusions of liability below, the Licensor warrants

that the Licensed Software as delivered by the Licensor and when used in

accordance with the Documentation shall substantially conform with the functions

described in the Documentation for a period of ninety (90) days from initial Licensed

Software purchase. Licensor does not warrant that the Licensed Software will meet

all of Your requirements or that the use of the Licensed Software will be

uninterrupted or error-free. The warranty shall not apply if the Licensed Software fails

to operate in accordance with the said warranty as a result of use in breach of these

terms, accident, misuse, unauthorised repair, modification, enhancement,

misapplication or failures that are caused by other software or hardware products.

(b) For any Licensed Software that does not operate as warranted in clause 4(a)

above, the Licensor shall, at its sole discretion, promptly repair the Licensed Software,

replace the Licensed Software with software of substantially the same functionality,

or terminate the license and refund the relevant license fee paid for such noncompliant

Licensed Software, provided that you return the Licensed Software to the

Licensor or its authorised reseller from whom you obtained it, together with the

purchase receipt within the warranty period. This obligation of the Licensor is subject

to your obligation to make available all information requested and that may be

necessary to help the Licensor to remedy the defect or fault, including sufficient

information to enable the Licensor to recreate the defect or fault.

Software, unless expressly agreed otherwise.

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(d) You are to take all such measures as are reasonable to avoid and reduce potential

damages, such as by taking regular backups.

(e) Subject to clause 4(a) above, the software is provided to you “AS IS”. THE

LICENSOR DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR

ENJOYMENT OF THE SOFTWARE AND SERVICES, THAT THE FUNCTIONS

CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE SOFTWARE

WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE OR

SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY SERVICES WILL

CONTINUE TO BE MADE AVAILABLE, THAT THE SOFTWARE OR SERVICES WILL BE

COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE, APPLICATIONS OR

THIRD PARTY SERVICES, OR THAT DEFECTS IN THE SOFTWARE OR SERVICES WILL

BE CORRECTED. INSTALLATION OF THIS SOFTWARE MAY AFFECT THE USABILITY

OF THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES. NO ORAL

OR WRITTEN INFORMATION OR ADVICE GIVEN BY THE LICENSOR OR

AN AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY, WHETHER

EXPRESS OR IMPLIED, OR IN ANY WAY ALTER THE SCOPE OF THIS LIMITED

WARRANTY.

(e) SAVE FOR AS PROVIDED IN clause 4 (b) ABOVE, SHOULD THE SOFTWARE OR

SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY

SERVICING, REPAIR OR CORRECTION.

(f) IF YOU ARE A CONSUMER AND THE ABOVE LIMITATIONS ON OUR WARRANTIES

ARE STATUTORILY NOT APPLICABLE IN FULL, THE RIGHTS GRANTED TO YOU AT

LAW BEYOND THAT WHICH IS WARRANTED BY US ABOVE, SHALL BE

INTERPRETED AS RESTRICTIVELY AS THE LAW ALLOWS FOR.

5. Disclaimers.

(a) THE WARRANTIES SET FORTH IN CLAUSE 4 ABOVE ARE YOUR ONLY

WARRANTIES AND ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS

OR IMPLIED. THE LICENSOR EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES,

INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS

FOR A PARTICULAR PURPOSE, AND WARRANTIES OF STATUTORY NONINFRINGEMENT.

NO THIRD PARTY, INCLUDING, WITHOUT LIMITATION, THE

LICENSOR’S AGENTS, SUPPLIERS, DISTRIBUTORS AND AUTHORIZED RE-SELLERS, IS

AUTHORISED TO MODIFY ANY OF THE ABOVE WARRANTIES ON BEHALF OFTHE

LICENSOR.

(b) YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT

PERMITTED BY APPLICABLE LAW, USE OF THE LICENSED SOFTWARE AND ANY

SERVICES PERFORMED BY OR ACCESSED THROUGH THE LICENSED SOFTWARE IS

AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY,

PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU.

ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS

WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE

CONTENT, DATA OR INFORMATION PROVIDED BY THE LICENSED SOFTWARE OR

SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR

ENVIRONMENTAL DAMAGE, INCLUDING WITHOUT LIMITATION THE OPERATION OF

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NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR

TRAFFIC CONTROL, LIFE SUPPORT OR WEAPONS SYSTEMS.

(e) IF THE EXCLUSION OF ANY IMPLIED WARRANTIES IS RENDERED INAPPLICABLE

AS A RESULT OF STATUTORILY MANDATED RULES, OR AS DEFINED BY SOME

JURISDICTIONS, ANY SUCH IMPLIED WARRANTIES THAT ARE PRESCRIBED BY LAW,

SHALL BE LIMITED TO THE BARE MINIMUM ALLOWED FOR BY THE SAME LAW AND

SHALL NOT EXTEND IN DURATION BEYOND NINETY (90) DAYS FROM THE DATE OF

PURCHASE OF THE LICENSED SOFTWARE OR TO THE MINIMUM PERIOD

PRESCRIBED BY LAW. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS

EULA SHALL EXCLUDE OR LIMIT ANY LIABILITY OF THE LICENSOR WHICH, BY LAW

OR REGULATION APPLICABLE TO THIS EULA, CANNOT BE EXCLUDED OR LIMITED.

FOR WARRANTY ASSISTANCE, CONTACT THE LICENSOR OR THE AUTHORISED

RESELLER FROM WHOM YOU OBTAINED THE LICENSED SOFTWARE.

(f) The Licensed Software may be used or utilised by technology providers, software

providers or other third parties (each “the Service Provider”) to provide you with

certain services, such as managed backup (“Managed Services”). We are not a party

to the agreement or understanding that you have with the Service Provider in

relation to the provision of Managed Services. The Service Provider shall be solely and

fully responsible for providing you with the Managed Services and complying with

the terms and conditions relating thereto, including any negligence, misconduct or

breach. You shall keep us free and fully indemnified from and against any claim that

you may have in relation to the Managed Services or to any breach of the Service

Provider’s obligations towards you or for anything done or omitted to be done by the

Service Provider in providing the Managed Services.

6. Limitations on Liability.

(a) The Licensor shall not be liable whether in contract, (including for negligence or

breach of statutory duty, howsoever arising), misrepresentation (whether innocent or

negligent), restitution or otherwise, for:

(a) any loss (whether direct or indirect) of profits, savings, business, business

opportunities, revenue, turnover, reputation or goodwill;

(b) any loss or corruption (whether direct or indirect) of data or information;

(including management time); or

(d) any indirect or consequential loss or liability.

(b) Unless excluded, the Licensor’s maximum aggregate liability for all loss, damage

and expense arising under this Agreement shall not exceed €10.

(a) personal injury or death;

(b) fraud or fraudulent misrepresentation;

law.

7. Indemnification. You agree to and do hereby indemnify, defend and hold harmless

the Licensor and its parent, subsidiary, or affiliate organisations, officers, agents,

suppliers, distributors and authorised re-sellers from any and all claims, losses,

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damages and expenses (including reasonable attorneys’ fees, legal expenses and

court costs) asserted by any third party due to or arising out of your breach of any

provision of this EULA, your use of the Licensed Software and Documentation, your

negligent or wrongful acts, and/or your violation of any applicable laws.

8. Termination of Your Rights. Your rights to use the Licensed Software and

Documentation as specified in clause 2 above shall terminate immediately and

without notice to you if you fail to comply with any of the provisions of this EULA

and/or any other agreement made in connection with this EULA, including a SPLA.

Upon termination for any reason all rights granted to you under this License shall

cease, you shall immediately discontinue the use of and destroy, delete or remove,

the Licensed Software and Documentation, including,

without limitation, any master copies, archival copies and all copies or portions

thereof, that are in your possession or were installed on computer peripherals by you.

Within ten (10) days of such termination you shall certify in writing to Licensor that all

such copies have been destroyed. You hereby also consent to the Licensor and/or its

agents, or employees, inspecting your computer peripherals under your supervision,

to ensure that the Licensed Software and Documentation has been so deleted

and/or destroyed.

9. Compliance with Applicable Law. Each party agrees to comply with all applicable

laws, rules and regulations in connection with its activities under this EULA.

10. Export Restrictions. You agree to comply with all applicable export control laws,

including the EU Common Foreign and Security Policy, the United States Export

Administration Act, or any other export laws or regulations. By using the Licensed

Software and Documentation, you represent and take full and sole responsibility that

i) you are not located in or under the control of or a national or resident of any

country or on any list which prohibit the exportation of the Licensed Software

ii) to any person or entity who you know or have reason to know will utilize the

Licensed Software or portion therefore in the design, development, production or

use of nuclear, chemical or biological materials, facilities or weapons or

iii) to any person or entity who has been prohibited from participating in U.S. by any

federal agency of the U.S. government or EU export restrictions

11. Intellectual Property Rights. The Licensed Software and related documentation

are copyrighted works of authorship and are also protected under applicable

database laws. The Licensor retains ownership of the Licensed Software, all

subsequent copies of the Licensed Software and all intellectual property rights

subsisting therein, regardless of the form in which the copies may exist. This EULA is

not a sale of the original Licensed Software or any copies thereof.

12. Maintenance and Support. If the Licensed Software includes and grants you the

right for maintenance and support as defined in clause 2, these services will

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commence upon the date your order is processed and the license file is generated.

You will receive support for your Licensed Software and any updates, enhancements

or improvements that are included or defined in the Maintenance Policies. Licensed

Software updates cannot be applied to the Licensed Software with an expired

Software Maintenance Agreement. If the Licensed Software is an upgrade from an

earlier release or previously released version, you are hereby authorised to use the

upgrade

only in accordance with this EULA. Consequently, any prior agreements with respect

to earlier or previous versions of the Licensed Software shall be deemed null and void

and superseded in all respects by this EULA. Updates and upgrades may be

automatically downloaded and installed from time to time. These updates may

consist of bug fixes, new features, or new versions. You expressly acknowledge and

agree that updates or upgrades may not necessarily include all features of the

previous version. You agree to receive such updates as part of the use of the

Licensed Software. The terms of this EULA will govern such updates or upgrades,

unless such update or upgrade is accompanied by a separate license in which case

the terms of that license shall prevail.

13. Privacy. You acknowledge that the Licensor collects and process technical

information for business purposes and improving the Licensed Software, as part of

any product maintenance and support services provided to you, and any other

technical information you provide to Licensor, provided that such information does

not identify You, as a specific individual.

(a ) In the event that you provide personal information to Licensor as part of your

purchase and use of the Software, or for obtaining Maintenance, or we other process

personal data in our capacity as data processors (in terms of applicable data

protection legislation), your personal information will be used, stored and processed

in accordance with Hornetsecurity Privacy Policy, which can be found at

http://www.hornetsecurity.com/service-privacy-statement. You also have the ability

to update your preferences by visiting Hornetsecurity Customer Portal

(b) The Licensed Software has the capability to collect and process technical

information such as configuration, performance, usage, consumption data which

may include the number of times you use the “restore” functionality, the size of the

backup, hardware identification, operating system, application software, peripheral

hardware, Internet Protocol Address, The Licensor shall under no circumstances ever

collect or examine the contents of any files you are backing up or restoring, unless

agreed to specifically between the two parties or required by specific circumstances,

in which case you will be informed in advance.

licensor technical support team. During this error report generation process, which is

done through manual user intervention, application debug data files, configuration

files, log files, system information and personal information (Name, Email, Phone

Number) will be generated and submitted for automatic support case generation.

14. Compliance. During the period this EULA remains in effect and for three (3) years

following the termination of your rights pursuant to clause 8, Licensor has the right

to verify your compliance with this EULA on your premises during your normal

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business hours and in a manner that minimises disruption to your business. The

Licensor may use an independent auditor for this purpose with your prior approval

which you shall not unreasonably withhold.

15. Feature and Capacity Limitations in Software – For certain Licensed Software,

your use of the Licensed Software may be limited by the features and capacity

purchased. In the event that you exceed the purchased capacity, the Licensed

Software may not support certain features or process additional workloads beyond

the maximum capacity until you purchase additional capacity or upgrade to another

suitable version.

16. Community Forums or Blogs – Any information that you post on the Community

Forums or Blogs is deemed non-confidential to you. Hornetsecurity has no

obligation to manage or protect any information (confidential or personal) that you

disclose on the Hornetsecurity Community Forums or Hornetsecurity Blogs

17. Queries. If you have any queries regarding this EULA, email

info@hornetsecurity.com with the word ‘EULA’ as the subject line.

18. Governing Language. Any translation of this License from the English language

is made solely for local requirements and in the event of a dispute between the

English and any non-English versions, the English version of this License shall

govern.

19. General.

(a) Unless you have entered into a separate, written and signed agreement with the

Licensor for the supply of Licensed Software, this EULA is the complete and exclusive

statement of the agreement between you and the Licensor with respect to the

Licensed Software and Documentation and the subject matter covered by this EULA

and supersedes any and all prior or contemporaneous communications, proposals,

agreements, purchase orders or similar terms issued by or to you, whether oral or

written. No modification, amendment, waiver, termination or discharge of this EULA

or of any of the terms and conditions hereof shall be binding upon either you or the

Licensor unless confirmed by a written instrument signed by you and by a duly

authorised officer of the Licensor. No waiver by you or the Licensor of any provision of

this EULA or of any default hereunder shall affect your or the Licensor’s respective

rights thereafter to enforce such provision, or to exercise any right or remedy, in the

event of any other default, whether or not similar.

(b) If any provision of this EULA shall be held void, voidable, invalid or inoperative, no

other provision of this EULA shall be affected as a result thereof and, accordingly, the

remaining provisions of this EULA shall remain in full force and effect as though such

void, voidable, invalid or inoperative provision had not been contained herein.

laws of Malta and without regard to principles of conflicts of law. Any and all actions,

suits and proceedings arising out of or relating to this EULA shall be brought only in

the courts of Malta, and the parties hereby unconditionally and irrevocably consent

and submit to such exclusive jurisdiction and waive any objection that they may now

or hereafter have with respect thereto.

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(d) We may transfer our rights and obligations under this License to another

organisation. We will inform you of such assignment. You may only assign your

rights and obligations to another person if we agree in writing prior to the

assignment taking place. A change of control shall constitute an assignment.

(e) Licensor will not be liable for any delay or failure to perform obligations under this

Agreement due to any cause beyond its reasonable control, including acts of God,

industrial disturbances, labor disputes, earthquakes, storms or other elements of

nature; systematic electrical, telecommunications or other utility failures; riots; acts of

terrorism; war; embargoes or acts or orders of government;

(f) If we fail to insist that you perform any of your obligations under this License, or if

we do not enforce our rights against you, or if we delay in doing so, that will not

mean that we have waived our rights against you and will not mean that you do not

have to comply with those obligations. If we do waive a default by you, we will only

do so in writing, and that will not mean that we will automatically waive any later

default by you.

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Terms & Conditions

Terms and Conditions – CamTechnologies, LLC (CamTech)

CamTechnologies, LLC. (CamTech)

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