EULA

This End User License Agreement (this “Agreement”) is a legal agreement between you (“Licensee”) and Adaptive Protocols, Inc. (“Licensor”).

If you are agreeing to these terms as an individual “Licensee” refers to you individually. You acknowledge that you are at least 18 years of age, that you have reviewed and accept this agreement, and that you agree to be bound by all of its terms. If you are not 18 years of age or do not agree with all of the terms of this agreement, you are not authorized to use or operate the Software and you must not download, install, copy or otherwise use the Software.

If you are agreeing to these terms as a representative of an entity, you represent that you have the authority to bind that entity and “Licensee” refers to that entity.

By downloading, running, or otherwise using Software (as defined below), Licensee acknowledges that they have reviewed and accept this Agreement, and that they agree to be bound by all of its terms. If Licensee does not agree with all of the terms of this Agreement you are not authorized to use or operate the Software and you must not download, install, copy or otherwise use the Software.

For clarity, if the parties have executed Licensor’s Term Software License Agreement, then this End User License Agreement is merely provided pro forma. The executed Licensor Term Software License Agreement terms govern all use of the Software by Licensee.

1. Definitions. Capitalized terms not otherwise defined in this Agreement will have the meanings detailed below.

“Affiliate(s)” means any legal entity that directly or indirectly owns, is owned by, or is commonly owned with a party. “Own” means having more than 50% ownership or the right to direct the management of the entity.

“Confidential Information” means any and all non-public technical and non-technical information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) pursuant to this Agreement in any form or medium, whether oral, written, graphical or electronic, that is marked confidential and proprietary, or that the Disclosing Party otherwise identifies as confidential and proprietary, or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as confidential and proprietary information, including but not limited to: pricing information, computer programs, source code, names and expertise of employees and consultants, know-how, and other technical, business, financial and product development information. “Confidential Information” does not include any information that (a) was lawfully known to the Receiving Party without obligation of confidentiality prior to its disclosure by the Disclosing Party; (b) is or becomes publicly available without a breach of this Agreement; (c) has been received from a third party authorized to make such a disclosure without an obligation to keep it confidential; (d) is independently developed by the Receiving Party without reference to confidential information disclosed under this Agreement; or (e) is Feedback (as defined below).

“Data Protection Law” means any Law applicable to Supplier or Microsoft, relating to data security, data protection and/or privacy, including Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to processing of personal data and the free movement of that data (“GDPR”), and Cal. Civ. Code Title 1.81.5, § 1798.100 et seq. (California Consumer Privacy Act) (“CCPA”), and any implementing, derivative or related legislation, rule, regulation, and regulatory guidance, as amended, extended, repealed and replaced, or re-enacted.

“Documentation” means the Specifications and all other materials provided to Licensee or otherwise made generally available to the public which describe the functions, features and operation of the Software.

“Effective Date” means the earlier of (a) the date that Licensee first clicks “accept” to this End User License Agreement and (b) the date that Licensee first downloads the Software.

“Endpoint” means a single computing device running a Microsoft Windows operating system. Each Endpoint must be owned or leased by Licensee or an entity controlled by, controlling or under common control with Licensee unless otherwise agreed in writing by Licensor.

“Feedback” is defined in Section 5.3 (Feedback).

“Intellectual Property Rights” means patents, copyrights, trademarks, trade secrets, moral rights, inventions, designs, logos, trade dress, publicity rights, and database rights and any other intellectual property rights in force or recognized now or in the future in any jurisdiction.

“Licensee Data” means all data and information, whether in written or electronic form, submitted to Licensor by Licensee or a User in connection with Licensee’s permitted use of the Software or Licensor’s provision of Maintenance (for example: error logs for troubleshooting).

“Licensee Systems” means Licensee’s Endpoints and other equipment and software used in the conduct of Licensee’s business.

“Maintenance” means the maintenance and support services described on Licensor’s support portal: https://support.adaptiva.com.

“Open Source Software” means Third Party Software delivered to Licensee as part of the Software that is subject to the provisions of an open source license agreement, such as the GNU Lesser General Public License and the Mozilla Public License.

“Personal Data” means information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a Data Subject. “Personal Data” includes “Personal Information and Personal Data” (as that term is defined in the GDPR), as context requires.

“Software” means the computer program(s) specified in each Software Schedule. Software also includes any Updates provided to Licensee from time to time during the Term. For the avoidance of doubt, “Software” does not include any Third-Party Software.

“Software Schedule” means (a) Licensor’s form of Software Schedule that has been signed by both parties, or if the parties have not executed such form, then (b) Licensor’s unmodified quote attached to Licensee’s purchase order. For clarity, if the parties have executed Licensor’s form of Software Schedule either simultaneously with execution of a Term Software License Agreement or as a separate document, then that executed Software Schedule form governs and Licensor’s quote is not incorporated into this Agreement.

“Software Schedule Effective Date” means (a) if the parties have executed Licensor’s form of Software Schedule, then the Software Schedule Effective Date is the date of last signature on that executed Software Schedule (b) if the parties have not executed Licensor’s form of Software Schedule then the Software Schedule Effective Date is the date indicated as the “Software Schedule Effective Date” on Licensor’s unmodified quote attached to Licensee’s purchase order.

“Specifications” means the user guides and operating manuals which describe the functions, features and operation of the Software.

“Subscription Period” means the subscription period for Licensee’s use of the Software set forth in a Software Schedule.

“Third-Party Software” means certain software Licensor licenses from third parties and provides to Licensee with the Software, including Open Source Software.

“Updates” means Software, Patches, Maintenance Releases and Product Releases for the Software (as defined in Maintenance and Support Terms).

“User” means Licensee’s employees and third party contractors who are permitted to access and use the Software from Licensee’s Endpoints.

“Warranty Period” is defined in Section 6.1 (Limited Warranty).

2. Software Schedules. From time to time during the term of this Agreement, Licensee may purchase licenses to use Software, and Licensor may grant such license subject to the terms and conditions of this Agreement. Any license granted will not be effective until the Software Schedule Effective Date. Any terms or conditions that Licensee includes with its orders or web portals, or otherwise provides to Licensor in connection with this Agreement are hereby excluded and will not amend or modify this Agreement.

3. License

3.1 Grant. Subject to Licensee’s compliance with the terms and conditions of this Agreement and the applicable Software Schedule, Licensor grants to Licensee a limited, non-exclusive, non-sublicensable, non-transferable, worldwide license for the applicable Subscription Period to (a) access and use the Documentation, and (b) install and use the Software in object code form. Licensee’s use of the Software and Documentation must be solely for Licensee’s own internal business purposes and not for the benefit of any third party, and solely for the number of Endpoints for which Licensee has subscribed as indicated on the applicable Software Schedule.

3.2 Limitations. Except as expressly permitted in this Agreement, Licensee will not and will not permit or induce any third party to: (a) decompile, reverse engineer, disassemble, print, copy or display the Software or otherwise reduce the Software to a human perceivable form in whole or in part; (b) publish, release, rent, lease, loan, sell, distribute or transfer the Software to another person or entity; (c) reproduce the Software or Documentation; (d) alter, modify or create derivative works based upon the Software or Documentation, either in whole or in part; (e) modify or remove any copyright or trademark notices on any copy of the Software or Documentation, or (f) host the Software or use the Software to operate a managed service provider service. Licenses granted under the provisions of this Agreement do not constitute a sale of the Software or Documentation.

3.3 Licensee Responsibilities. Licensee is responsible for: (a) installing, managing, operating, and physically controlling the Software and the results obtained from using the Software; (b) using the Software within the operating environment specified in the Documentation; (c) managing the software key(s) provided by Licensor for installation and use of the Software, and updating such keys on an annual basis during the relevant Subscription Period(s). Licensee also agrees that Licensee is solely responsible for the actions of its Users and their use of the Software.

3.4 Licensee Systems. Licensee is responsible for (a) obtaining, deploying and maintaining the Licensee Systems and all related computer hardware, software, modems, routers and other equipment necessary for Licensee’s use of the Software; (b) contracting with third party ISP, telecommunications and other service providers; and (c) paying all third party fees and access charges incurred in connection with the foregoing. Licensee acknowledges that the Software is intended for use on the computing systems and with the software packages identified in the applicable Documentation. Licensee agrees that Licensor is not be responsible for ensuring that the Software is interoperable with other computing systems and/or software. Licensee will not be entitled to receive a refund or other remedy in the event any third party system or software is modified in a manner that impacts the performance of or compatibility with the Software.

3.5 Third-Party Software. Licensee’s use of the Third-Party Software is subject to and governed by the respective Third-Party Software licenses, except that this Section 3.5 (Third-Party Software), Section 6.2 (Third-Party Software), 6.3 (Warranty Disclaimer), and Section 8 (Limitations of Liability and Exclusions of Liability) of this Agreement also govern Licensee’s use of the Third-Party Software. To the extent applicable to Licensee’s use of such Third-Party Software, Licensee agrees to comply with the terms and conditions contained in all such Third-Party Software licenses.

3.6 United States Government Users. The Software has been developed entirely at private expense and is a “commercial item” consisting of “commercial computer software” and “commercial computer software documentation” provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government or a U.S. Government subcontractor is subject to the restrictions in this Agreement pursuant to DFARS 227.7202-3(a) or as set forth in subparagraphs (b)(1) and (2) of the Commercial Computer Software - Restricted Rights clause at FAR 52.227-19, as applicable. Contractor/manufacturer is: Adaptive Protocols, Inc., 4010 Lake Washington Blvd NE, Suite 200, Kirkland, WA 98034.

4. Fees, Invoices, Payments and Delivery

4.1 Fees. Licensee agrees to pay all amounts due under this Agreement using one of the payment methods Licensor supports. Except as otherwise specified in this Agreement or in a Software Schedule, (a) fees are quoted and payable in United States dollars, (b) payment obligations are non-cancellable and fees paid are non-refundable, and (c) subscription fees are paid in advance and the number of Endpoints purchased cannot be decreased during the relevant Subscription Period shown on the applicable Software Schedule. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding.

4.2 Taxes. All fees are exclusive of all taxes, duties, or similar charges. If Licensor is required to pay sales, use, value-added or other taxes based on the payments provided pursuant to a Software Schedule and if Licensor is required to collect and remit such taxes, then such taxes will be billed to and paid by Licensee, unless Licensor receives a valid exemption or resale certificate. If Licensee is not billed the applicable tax under the Software Schedule, then it is Licensee’s responsibility to properly remit the tax directly to the applicable tax jurisdiction. This section does not apply to taxes based on Licensor’s net income or payroll taxes.

4.3 Delivery. Unless otherwise specified in the applicable Software Schedule, Licensor will deliver the Software and Documentation via electronic download from a location designated by Licensor. Licensee will be deemed to have accepted the Software and Documentation upon download.

5. Ownership.

5.1 Ownership. Licensor is the sole and exclusive owner, and will retain all right, title and interest in and to the Software and Documentation. Except as expressly provided in this Agreement, no licenses of any kind are granted whether by implication, estoppel, or otherwise.

5.2 Licensee Data. Licensee represents and warrants that it and its Users have the authority (a) to transmit all Licensee Data provided under this Agreement, including but not limited to permissions granted by the owners of any Intellectual Property Rights applicable to such data, and (b) to grant the necessary licenses provided to Licensor in this Agreement. Licensee grants to Licensor a royalty free, non-exclusive, worldwide license for the applicable Subscription Period, to use any and all Licensee Data for purposes of providing the Software and Maintenance services to Licensee. Licensee will not and will ensure that its Users do not, upload, post or otherwise transmit any Licensee Data to Licensor that impermissibly discloses the confidential information of another party, or that infringes or violates another party’s rights.

5.3 Feedback. Licensee may provide Licensor suggestions, feature requests, possible enhancements or modifications regarding the Software and Documentation (collectively, “Feedback”). Providing Feedback is voluntary. For any Feedback that Licensee voluntarily provides, Licensee grants Licensor a royalty free, perpetual, non-exclusive, worldwide, irrevocable license to use, reproduce, modify, license, sublicense (through multiple tiers of sub-licensees), and distribute (through multiple tiers of distributors) such Feedback. Licensor will decide in its sole discretion if and how to respond to Feedback and whether to incorporate Feedback into the Software and Documentation.

6. Warranties and Disclaimers.

6.1 Limited Warranty. Licensor warrants for a period of thirty (30) days from the applicable Software Schedule Effective Date that the Software will materially conform to Licensor’s then-current Specifications (the “Warranty Period”) when properly installed on Endpoints for which a license is granted under this Agreement. Licensee’s exclusive remedy for a breach of this warranty is for Licensor, at its option, repair or replace the Software, or refund a pro rata portion of the fees paid by Licensee corresponding to the remainder of the then-current Subscription Period.

6.2 Third-Party Software. Third-Party Software (including any Open Source Software) is provided on an “as-is” basis. Licensor makes no express or implied warranties of any kind with respect to Third-Party Software provided to Licensee. Any and all express or implied warranties, if any, that apply to the Third-Party Software will be those warranties included in the license terms for such Third Party Software. NOTE: As of the publication date for this Agreement, the only Third Party Software included in the Software is Open Source Software.

6.3 WARRANTY DISCLAIMER. EXCEPT WITH RESPECT TO THE LIMITED WARRANTY IN SECTION 6.1 ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. FURTHERMORE, LICENSOR DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE SOFTWARE OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE LIMITED WARRANTY.

7. Indemnity

7.1 Indemnification by Licensor. Subject to the terms and conditions set out in this Section 7, at its expense, Licensor will defend and hold harmless Licensee against any third party claim (which, for purposes of this Agreement, is a claim brought by a party that is not a party to this Agreement or an Affiliate of a party to this Agreement) (“Third Party Claim”) brought against Licensee arising from (a) an allegation that the Software (excluding any Third Party Software) infringes or misappropriates such third party’s Intellectual Property Rights (“Infringement Claim”), or (b) Licensor’s use of Licensee Data, 3P Software Updates, or Licensee Content in breach of this Agreement, and indemnify Licensee from the resulting costs and damages awarded against Licensee to the third party raising such Third Party Claim by a court of competent jurisdiction or agreed to in settlement. If the Software is subject to an Infringement Claim and as a result, Licensee’s use of the Software is enjoined, then Licensor will, at no cost to Licensee, procure for Licensee the right to continue using the Software or replace the Software with a non-infringing or modified Software of materially equivalent functionality. If none of the foregoing options are available on terms that are commercially reasonable for Licensor, then Licensor may terminate Licensee’s right to access and use the Software subject to the Infringement Claim, and Licensor will refund Licensee any prepaid license fees applicable to such Software for the unused portion of such Software’s Subscription Term, prorated from the effective date of termination. Licensor’s obligations under this Section 7 with respect to any Third Party Claims will be comparatively reduced to the extent the Third Party Claim results from: (i) any modification made to a Software by Licensee, its Users, or a party other than Licensor (or Licensor’s contractors) if the Third Party Claim would have been avoided in the absence of such modification; (ii) the combination of a Software with other products not originally embodied in the Software as delivered by Licensor if such infringement would have been avoided by not combining with such products; (iv) Licensee’s use of the Software in breach of this Agreement; or (v) Licensee’s negligence or willful misconduct.

7.2 Indemnification by Licensee. Subject to the terms and conditions set out in this Section 7, at its expense, Licensee will defend and hold harmless Licensor against any Third Party Claim brought against Licensor arising from (a) an allegation that all or any part of the Licensee Data, or Licensee Content infringes, misappropriates, or violates the intellectual property, privacy, or other proprietary or legal right of such third party, (b) an allegation that Licensor’s use of 3P Software Updates for Licensee’s benefit infringes, misappropriates, or violates the intellectual property, privacy, or other proprietary or legal right of such third party, or Licensee’s use of the Software in breach of this Agreement, and indemnify Licensor from the resulting costs and damages awarded against Licensor to the third party raising such Third Party Claim by a court of competent jurisdiction or agreed to in settlement. Licensee’s obligations under this Section 7.2 with respect to any Third Party Claims will be comparatively reduced to the extent the Third Party Claim results from: (i) Licensor’s use of Licensee Data, 3P Software Updates, or Licensee Content in breach of this Agreement; or (ii) Licensor’s negligence or willful misconduct.

7.3 Process for Tendering Claims. The obligations of a party (“Indemnitor”) to defend and indemnify the other (“Indemnitee”) under this Agreement are subject to the following: (a) Indemnitee must promptly inform Indemnitor in writing of any Third Party Claim within the scope of Indemnitor’s defense or indemnity obligations set forth in this Agreement, provided that Indemnitor will not be excused from its indemnity obligations for failure to provide prompt notice except to the extent that Indemnitor is prejudiced by any such failure to provide prompt notice; (b) Indemnitor will be given exclusive control of the defense of such Third Party Claim and all negotiations relating to the settlement thereof (except that Indemnitor may not make any admissions on Indemnitee’s behalf or settle any such Third Party Claim unless the settlement unconditionally releases Indemnitee of all liability); and (c) Indemnitee must reasonably assist Indemnitor in all necessary respects in connection with the defense of the Third Party Claim at Indemnitor’s expense. Indemnitor’s obligations under this Section 7 (Indemnity) will be limited to the extent to which a court of final jurisdiction finds that Indemnitee contributed to the Third Party Claim. If Indemnitee elects to participate in the defense of a Third Party Claim that Indemnitor is defending per this Section 7, then such defense shall be at Indemnitee’s sole cost and expense. Unless otherwise provided in Section 14 (Software-Specific License terms), this Section 7 states Indemnitor’s sole liability, and Indemnitee’s exclusive remedy, with respect to the type of Third Party Claims described in this Agreement.

8. LIMITATIONS AND EXCLUSIONS OF LIABILITY

8.1 Indirect and Consequential Damages; Aggregate Liability. TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW AND SUBJECT TO SECTION 8.2 BELOW, A PARTY WILL NOT BE LIABLE TO THE OTHER FOR (A) ANY COSTS RELATED TO PROCUREMENT OF REPLACEMENT PRODUCTS OR SERVICES, (B) ANY LOSS OF USE, LOST DATA, INTERRUPTION OF BUSINESS, OR (C) ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW AND SUBJECT TO SECTION 8.2 BELOW, A PARTY’S AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF, OR RELATED TO, THIS AGREEMENT (WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY) WILL BE LIMITED TO ACTUAL AND PROVEN DAMAGES IN AN AMOUNT NOT TO EXCEED THE AMOUNT PAID BY LICENSEE TO LICENSOR UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM.

8.2 Exclusions to Limitation of Liability; Limitation of Claims. The limitations set out in Section 8.1 above do not apply to: (a) amounts incurred by a party acting as an Indemnitor under Section 7 (Indemnity) above; (b) breach of obligations under Section 11 (Confidentiality), (c) Licensee’s obligation to pay amounts due under this Agreement; (d) Licensee’s use of the Software in violation of Section 3 (License) or Section 14 (Software-Specific License Terms); or (e) actual and proven damages arising from the other party’s willful misconduct or gross negligence. Except with respect to claims of infringement or misappropriation of intellectual property or Licensee’s failure to pay amounts due under this Agreement, neither party may bring any claim against the other relating to this Agreement more than two years after the events giving rise to the claim occurred.

8.3 LICENSOR EXPRESSLY DISCLAIMS ALL LIABILITY FOR DAMAGES ARISING FROM THE USE OR OPERATION OF ANY THIRD-PARTY SOFTWARE PROVIDED UNDER THIS AGREEMENT.

8.4 These exclusions and limitations of liability apply regardless of whether a party has been advised of the possibility of such damages, and regardless of whether a remedy fails its essential purpose. These exclusions and limitations of liability form an essential basis of the bargain between the parties, and absent any of these exclusions or limitations of liability, the provisions of this Agreement (including, without limitation, the economic terms) would be substantially different.

9. Maintenance and Support. Provided that Licensee has paid all applicable fees, Licensor agrees to provide Licensee with the Maintenance services described on Licensor’s support portal: https://support.adaptiva.com for the term of the Subscription Period.

10. Term and Termination

10.1 Term. The term of this Agreement commences on the Effective Date and continues until the expiration or termination of all Subscription Period(s), unless earlier terminated as provided in this section. The parties may renew any Software Schedule by mutual written agreement prior to its expiration.

10.2 Termination for Cause. Either party may terminate this Agreement and/or any Software Schedule upon written notice to the other party in the event the other party (a) files a petition for bankruptcy or has a petition for bankruptcy filed against it that is not dismissed within sixty (60) days after filing or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination will occur immediately upon notice; or (b) commits a material breach of any provision of this Agreement and does not remedy such breach within thirty (30) days after receipt of notice from the other party or such other period as the parties may agree. In no event will any termination relieve Licensee of the obligation to pay any fees payable to Licensor for the period prior to the effective date of termination.

10.3 Effects of Termination. Termination of this Agreement will terminate all Software Schedules. Upon expiration or termination of this Agreement or a Software Schedule, (a) Licensee’s use of the Software under applicable Software Schedule(s) and Licensor's performance of all Maintenance services will cease; and (b) all fees and other amounts owed to Licensor will be immediately due and payable by Licensee, including without limitation, all fees incurred under any outstanding Software Schedule(s) up through the date of termination. Licensor will have no obligation to maintain or provide copies of any Licensee Data and may thereafter, unless legally prohibited, delete all Licensee Data in its systems or otherwise in its possession or under its control. In addition, within ten (10) days of the effective date of termination each Receiving Party will: (i) destroy all items of Confidential Information (other than the Licensee Data) then in the Receiving Party’s possession or control, including any copies, extracts or portions of such information, and (ii) upon request will certify in writing to Disclosing Party that it has complied with the foregoing.

10.4 Survival. Sections 1 (Definitions), 3.2 (Limitations), 3.3 (Licensee Responsibilities), 3.4 (Licensee Systems), 4 (Fees, Invoices, Payments and Delivery), 5 (Ownership), 6.3 (Warranty Disclaimer), 7 (Indemnity), 8 (Limitations and Exclusions of Liability), 10 (Term and Termination), 11 (Confidentiality), 12 (Audits), 13 (Compliance with Laws; Export), 14 (Software-Specific License Terms), and 15 (Miscellaneous) will survive any termination or expiration of this Agreement.

11. Confidentiality; Proprietary Nature of Information

Neither party will use any Confidential Information of the other party except as expressly permitted by this Agreement or as expressly authorized in writing by the Disclosing Party. The Receiving Party will use the same degree of care to protect the Disclosing Party’s Confidential Information as it uses to protect its own Confidential Information of like nature, but in no circumstances less than a commercially reasonable standard of care. The Receiving Party may not disclose the Disclosing Party’s Confidential Information to any person or entity other than to its employees and contractors who need access to such Confidential Information for the purpose of fulfilling that party’s obligations or exercising that party’s rights under this Agreement. The foregoing obligations will not restrict the Receiving Party from disclosing Confidential Information of the Disclosing Party: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the Receiving Party required to make such a disclosure gives reasonable notice to the Disclosing Party prior to such disclosure; and (b) on a confidential basis to its legal and financial advisors. Notwithstanding the foregoing, Licensee acknowledges and agrees that Licensor will be permitted to incorporate Licensee Data as part of aggregated, anonymous or anonymized data sets (that do not include any personally-identifiable information or any information capable of being used (by itself or in combination with other information, whether or not included in such data sets) to identify Licensee or any of its officers, directors, employees or contractors), for market research, academic research, benchmarking or other similar purposes.

12. Audits

During the term of this Agreement and for a period of one (1) year thereafter, Licensee will maintain complete and accurate books, records and electronic backups in connection with its use of the Software and Documentation, in sufficient detail to permit Licensor to verify Licensee’s compliance with the terms and conditions of this Agreement. Licensor and its agents will have the right to inspect Licensee’s facilities, equipment and records, including access to the Software and Documentation to verify compliance with the terms and conditions of this Agreement, including the amounts payable to Licensor under this Agreement. Any such audit will be conducted during regular business hours at Licensee’s offices and will not interfere unreasonably with Licensee’s business activities. If an audit reveals that Licensee has underpaid the total fees or charges to Licensor by more than five percent (5%) for the period covered by the audit, then Licensee will pay Licensor’s reasonable costs of conducting the audit, in addition to the underpaid amount.

13. Compliance with Laws; Export

13.1 Compliance with Laws. Each party agrees to comply with any applicable local, state, federal and international laws and regulations laws, regulations, and ordinances (“Laws”) applicable to its performance under this Agreement. Without limiting the foregoing, Licensee warrants and covenants that it will comply with all then current laws and regulations of the United States and other jurisdictions relating or applicable to Licensee’s use of the Software and Documentation including, without limitation, those concerning Intellectual Property Rights.

13.2 Export. The Software, Documentation and related technical data may be subject to U.S. export control laws, including without limitation the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Licensee will comply with all such regulations and agrees to obtain all necessary licenses to export, re-export, or import the Software, Documentation and related technical data.

14. Software-Specific License Terms

14.1 Software-Specific License Terms for Adaptiva CDN

Included with Adaptiva OneSite Anywhere and other eligible Adaptiva products. Licensee’s license to Adaptiva CDN is included with the license to OneSite Anywhere and other eligible products at no additional cost, with the exception of possible overage charges as listed in sub-section (a) below. If Licensee elects to use Adaptiva CDN, then the following additional terms apply in addition to those of the Agreement.

1. Service Charges: Licensee acknowledges that the following fees will apply for use of Adaptiva CDN above the thresholds shown below.

   	Included	Overage Costs
   Data Storage	2TB per Customer	$300 per 1TB (or part thereof), per year
   Data Transfer / Egress	1GB per endpoint, per month*	$0.02 per 1GB, per month

   *This is shared/pooled across all licensed Endpoints.

    

2. Licensor reserves the right to suspend Licensee’s use of Adaptiva CDN service if in Licensor’s sole discretion Licensee is intentionally abusing the platform and affecting other customers. Licensor will provide Licensee written notice and a reasonable period of time to rectify the issue (unless such use is causing an outage, in which case Licensor will suspend access immediately).
3. Lawful Use. Licensee will only use Adaptiva CDN for hosting lawful content which Licensee either lawfully owns or validly licenses the right to distribute, and which is permitted to be distributed to its Users by applicable laws, rules and regulations.
4. DMCA Compliance. Both Adaptiva and Licensee will maintain procedures, policies, and designated agents necessary to comply with the Digital Millennium Copyright Act of 1998, as amended (“DMCA”). Licensee acknowledges that Adaptiva will remove or block access to Licensee’s content if Adaptiva receives a proper DMCA notice or other legal action and Licensee does not respond to Adaptiva’s notice in a timely manner.
5. Compliance with Notices. Licensee agrees to promptly respond to any notices received from Adaptiva with respect to Licensee’s content transmitted through Adaptiva CDN by promptly:
   1. removing such content from transmission via Adaptiva CDN,
   2. blocking access to such material from transmission via Adaptiva CDN, or
   3. providing a written response explaining why such content is not required to be removed or blocked from transmission via Adaptiva CDN.
6. Denial Of Service. Licensee agrees not to use Adaptiva CDN to host abusive services which may or are reasonably likely to cause an outage to a third party.
7. Offensive Content. Licensee agrees not to use Adaptiva CDN to host content which is offensive in nature.
8. Data Backup. Adaptiva CDN uses Amazon S3 and/or other equivalent highly durable and redundant storage infrastructure. Licensor does not back up any data stored in Adaptiva CDN. Licensee is solely responsible for the backup of Licensee's data. Adaptiva disclaims any and all responsibility for the backup of Licensee's data and the integrity and content of Licensee's data.
   1. Licensor exercises no control over, and accepts no responsibility for, the content of Licensee’s information passing through Adaptiva CDN via Licensor’s host computers, network hubs and points of presence, or the Internet.

14.2 Software-Specific License Terms for Adaptiva Patching and Software Distribution products

1. In order to use Adaptiva’s Patching and Software Distribution products, Licensee agrees that Licensor is authorized to download or otherwise obtain, and store on Adaptiva’s CDN or other Adaptiva systems, on Licensee’s behalf, all software products, updates and upgrades to third party software products (“3P Software Updates”) lawfully licensed by Licensee for use in Licensee Systems and distribute such 3P Software Updates to Licensee through Adaptiva Patching and Software Distribution products. Licensor will not use 3P Software Updates for its own internal business purposes or provide Licensee’s 3P Software Updates to other customers.
2. Licensee and its Users will retain all right, title and interest in and to any data, content, code, video, images or other materials of any type that Licensee and its Users transmit to or through Adaptiva’s Patching and Software Distribution products (collectively, “Licensee Content”) in the form provided to Licensor.
3. Subject to the terms of this Agreement, Licensee grants Licensor a non-exclusive, fully sublicensable, worldwide, royalty-free right to collect, use, copy, store, transmit, modify and create derivative works of 3P Software Updates and Licensee Content, in each case solely to the extent necessary to provide Adaptiva’s Patching and Software Distribution products.
4. Licensee must obtain all necessary rights, releases and permissions to provide 3P Software Updates and Licensee Content to Licensor. Transfer of Licensee Content and 3P Software Updates for use with Adaptiva’s Patching and Software Distribution products must not violate any applicable Laws (including without limitation those relating to export control or electronic communications).
5. Other than ensure that 3P Software Updates are not used by Licensor for its own internal business purposes, Licensor assumes no responsibility or liability for 3P Software Updates and Licensee Content. Licensee is solely responsible for the consequences of using, disclosing, storing, transferring or transmitting 3P Software Updates and Licensee Content.
6. By transmitting Licensee Content to or through the Services, Licensee represents and warrants that Licensee Content does not infringe, violate, or misappropriate any third-party right, including any Intellectual Property Right.
7. Licensor retains all right, title, and interest in all models, observations, reports, analyses, statistics, databases and other information created, compiled, analyzed, generated or derived by Licensor from server, network or traffic data generated by Licensor in the course of providing Adaptiva’s Patching and Software Distribution products (“Network Data”), and shall have the right to use Network Data for purposes of providing, maintaining, developing, and improving Adaptiva’s Patching and Software Distribution products. Licensor may monitor and inspect the traffic on the Licensor network, including any related logs, as necessary to provide Adaptiva’s Patching and Software Distribution products. To the extent the Network Data includes any Personal Data, Licensor will handle such Personal Data in compliance with applicable Data Protection Laws.
8. Licensee agrees that Licensee will be solely responsible for its use and its Users’ use of Adaptiva’s Patching and Software Distribution products.

15. Miscellaneous

15.1 Notices. All notices required or contemplated by this Agreement will be in writing. Any notice to be given under this Agreement, by either party will be deemed received when delivered personally or five (5) days after being mailed certified mail, postage prepaid, and addressed to the applicable address on the first page of the Agreement, or to such other address as each party may designate in writing.

15.2 Entire Agreement. Provided that the parties have not executed Licensor’s form of Term Software License Agreement with a Software Schedule for the applicable Software product, this Agreement supersedes all prior and contemporaneous communications, whether written or oral, regarding the subject matter covered in this Agreement. If there is a conflict between any parts of this Agreement not resolved by its terms, the following order of precedence will apply:

1. a signed Software Schedule that uses Licensor’s form of Software Schedule,
2. this Agreement
3. Licensor’s unmodified quote attached to a Licensee purchase order (to be used only if the parties have not executed a Software Schedule and then solely for the purpose of establishing the applicable Software licensed, the quantity of Endpoints licensed, the Subscription Period term (which under no circumstances will exceed three years).

This Agreement (including any Software Schedule) may be modified only by a written agreement signed by authorized representatives of both parties. Licensor is not bound in any way by any online terms or agreements accepted in connection with execution of this Agreement, any Software Schedule, or the provision of Software to Licensee, and no such terms will amend this Agreement.

15.3 Severability In the event any one or more of the terms or provisions contained in this Agreement or any application thereof finally will be declared by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired, except that, in such an event, this Agreement will be deemed revised in order to provide the party adversely affected by such declaration with the benefit of its expectation, evidenced by the provision(s) affected by such a declaration, to the maximum extent legally permitted.

15.4 Assignment. Licensee will not sell, assign, transfer, pledge, or encumber this Agreement or any right, or delegate any duty or obligation under this Agreement, by assignment or operation of law, without Licensor’s prior written consent. Licensor will not unreasonably withhold such consent. Licensee will be deemed to have assigned this Agreement if Licensee engages in a change of control transaction. This Agreement will inure to the benefit of and bind all permitted successors, assigns, receivers, and trustees of each party. Any attempted assignment that violates this provision is a material breach and is void.

15.5 Force Majeure. Except for business continuity (i.e., disaster recovery) obligations under this Agreement, neither party is liable for failing to perform its obligations under this Agreement due to acts of God, natural disasters, war, civil disturbance, or government action where the cause is beyond the party’s reasonable control (“Force Majeure Event”). A Force Majeure Event does not include difficulty in obtaining labor, materials, or transport, or a strike, lock-out, trade dispute, or labor disturbance where Supplier is a direct party. The party affected by a Force Majeure Event will provide written notice to the other party within a commercially reasonable time and use best efforts to resume performance as soon as reasonably possible.

15.6 Breach and Waiver. No waiver of any breach of this Agreement will: (a) be effective unless it is in a writing which is executed by the party charged with the waiver, or (b) constitute a waiver of a subsequent breach, whether or not of the same nature.

15.7 Choice of Law and Venue. This Agreement is governed by Washington state law (disregarding conflicts of law principles), and the parties consent to exclusive jurisdiction and venue in the state and federal courts in King County, Washington. Neither party will claim lack of personal jurisdiction or forum non conveniens in these courts. In any action or suit related to this Agreement, the prevailing party is entitled to recover its costs including reasonable attorneys’ fees.

15.8 Injunctive Relief. The parties agree that monetary damages would not be an adequate remedy for the breach of certain provisions of this Agreement, including, without limitation, all provisions concerning infringement, confidentiality and nondisclosure, or limitation on permitted use of the Software or Documentation. The parties further agree that, in the event of such breach, injunctive relief may be necessary to prevent irreparable injury. Accordingly, either party will have the right to seek injunctive relief or similar equitable remedies to enforce such party's rights under the pertinent provisions of this Agreement, without limiting its right to pursue any other legal remedies available to it.

15.9 Independent Contractor. Licensor and Licensee are independent contractors in all relationships and actions under and contemplated by this Agreement. This Agreement does not to create any employment, partnership, joint venture, or agency relationship between the parties.