This Subscription Agreement, including any exhibits, annexes, and appendices hereto (the “Agreement”), governs Customer's ordering, subscription, and use of the software-as-a-service products offered by Alien Software Inc. (“Company”) and made available for purchase through Company's website. This Agreement is a binding contract between Company and the business entity on whose behalf an Account is created, a Subscription Plan is selected, or the Service is otherwise accessed or used (“Customer”) (each, a “Party”, and collectively, the “Parties”). By creating an Account, selecting a Subscription Plan, clicking to accept or agree to this Agreement, completing the checkout process on Company's website, or otherwise accessing or using the Service, the individual taking such action represents and warrants on behalf of Customer that: (i) such individual is duly authorized to act on Customer's behalf and to legally bind Customer to this Agreement; (ii) Customer is a duly organized legal entity with full capacity to enter into binding contracts; and (iii) Customer has fully read, understood, and agrees to be bound by all terms and conditions set forth herein. The “Effective Date” of this Agreement is the earliest of the date on which Customer creates an Account, completes the checkout process on Company's website, or first accesses the Service. Customer may access and use the Service solely in accordance with the terms of this Agreement.

1. Definitions

The following capitalized terms have the meanings set forth below:

1.1 “Affiliate” with respect to any entity, means any other entity controlling, controlled by or under common control with such entity, where “control” means direct or indirect ownership or voting control of fifty percent (50%) or more of the equity or voting securities of the entity in question or having the power, by commitment or otherwise, to elect a majority of the Board of Directors (or similar governing body) of the entity in question.

1.2 “Customer Data” means certain data and content that Customer and its Users may make available to, provide to, or otherwise submit through the Company or the Service (defined below) in connection with their use of the Service, excluding Analytics Information (defined below) and End-Customer Data (defined below).

1.3 “End-Customer Data” means any data or content originating from or belonging to the customers or end-users of Customer (i.e., the customers of Customer's products or services deployed via the Service) (“End-Customers”). For the avoidance of doubt, End-Customer Data is not Customer Data for purposes of this Agreement. The Service is designed with the intent that End-Customer Data will not be made available to or accessible by Company, and it is not Company's intention to access, process, store, or otherwise obtain visibility into End-Customer Data in the course of providing the Service.

1.4 “Feature” means any module, tool, functionality, or feature of the Service.

1.5 “Fees” means all amounts payable by Customer under this Agreement and/or any applicable Order Form, including, as applicable, subscription Fees, fees for Additional Purchases, and usage-based fees.

1.6 “Initial Subscription Term” means the initial Service subscription period specified in the Order Form.

1.7 “Order Form” means the online order confirmation generated upon Customer's completion of the checkout process through Company's website, which sets out the applicable Subscription Plan, Subscription Scope, Fees, billing frequency, and Initial Subscription Term. Where Customer makes Additional Purchases or modifies its Subscription Plan through Company's website, each such transaction shall generate a corresponding updated Order Form or order confirmation.

1.8 “Subscription Plan” means a specific tier of the Service comprising defined features, usage entitlements, and corresponding pricing, as published by Company on its pricing page (available at https://www.alien.dev/pricing), and as may be updated by Company from time to time in accordance with Section 17.9 of this Agreement.

1.9 “Subscription Scope” means any Service usage and/or limitations set forth in the Order Form.

1.10 “Users” means an employee of Customer authorized to access and use the Service on behalf of Customer.

2. Subscription

2.1 Access Right. Subject to the terms and conditions of this Agreement, Company hereby grants Customer a limited, worldwide, non-exclusive, non-sublicensable, non-transferable, and revocable right to remotely access Company’s software-as-a-service (the “Service”) during the Subscription Term (defined below), solely for Customer's internal business purposes and subject to the Subscription Scope (collectively, the “Subscription”). Unless otherwise indicated, the term “Service” also includes any manual or documentation provided or made available to Customer in connection with the operation of the Service (“Documentation”). Customer may use the Service subject to the Subscription Scope, other usage limitations or restrictions specified in this Agreement, and applicable laws and regulations.

Customer shall be solely responsible for providing all equipment, systems, assets, access, and ancillary goods and services needed to access and use the Service and for ensuring their compatibility with the Service.

2.2 Additional Purchases. Customer may, at any time during the Subscription Term, expand its Subscription by purchasing access to additional Features or increasing its usage capacity beyond the current Subscription Scope (collectively, “Additional Purchases”), through Company's website or by contacting Company directly. Any Additional Purchases shall be reflected in an updated Order Form. If Customer makes any Additional Purchases during a Subscription Term, the applicable Fees and the corresponding service term therefor will be prorated to be coterminous with the then-current Subscription Term.

2.3 Account Setup. In order to access the Service, Customer is required to set up an administrative account with Company by submitting the information requested in the applicable Service interface (“Account”), and each User may need to set up a user account (each, a “User Account”, and references herein to the “Account" shall be deemed to include all such User Accounts, if applicable). Customer warrants that all information submitted during the registration process is, and will thereafter remain, complete and accurate. Customer shall be responsible and liable for all activities that occur under the Account. Customer will require that all Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. Customer shall be fully responsible and liable for any breach of this Agreement by any User. Any unauthorized access to or use of the Service must be immediately reported to Company.

2.4 Hosting. The Service is hosted by a third-party hosting services provider selected by Company (currently AWS) (”Hosting Provider”), and accordingly the availability of the Service shall be in accordance with the Hosting Provider's then-current uptime commitments.

2.5 Authorization to Access Customer-Controlled Environments. Customer acknowledges that the Service operates by deploying and managing Customer’s software products within infrastructure environments owned or controlled by Customer or its end-customers (“Customer-Controlled Environments”), which may include public cloud (e.g., AWS, GCP, Azure), private cloud, or air-gapped infrastructure. Customer hereby grants Company a limited, revocable authorization to access, configure, deploy, and manage software within Customer-Controlled Environments solely as necessary to provide the Service (“Access Authorization”). Company shall use the Access Authorization solely for the purpose of providing the Service and for no other purpose. Customer may revoke the Access Authorization at any time upon written notice to Company; provided that such revocation may limit or prevent Company’s ability to perform the Service, and Company shall bear no liability for any resulting service disruption or degradation.

3. Support Services

3.1. Company will provide Customer with reasonable support services for the Services through one or more support channels, which may include email, Slack, and an in-application chat feature. Company will use commercially reasonable efforts to respond to Customer’s support requests within a reasonable time; however, support availability and response times may vary depending on the nature, volume, and complexity of the applicable request. Company may modify its support channels and procedures from time to time, provided that it uses reasonable efforts to notify Customer of any material changes (the “Support Services”). Company may access the Account as necessary to respond to Customer’s technical support requests. The support and maintenance services may be performed by Company and/or Company's certified third-party providers. Company shall be responsible for such service providers' performance of the support and maintenance services. The term “Subscription” shall include the services provided under the Support Services. Customer acknowledges and agrees that Company may from time to time, during the Subscription Term, develop bug fixes and/or patches (“Updates”), which may remotely and automatically update and maintain the Service components (including if installed on Customer’s premises). In addition, Company may from time to time, during the Subscription Term, develop enhancements, new releases, new Features, new versions of and other changes to the Service (collectively, “Upgrades”), which may remotely and automatically upgrade the Service components (including if installed on Customer’s premises). For clarity, such Updates and/or Upgrades do not include any generally-available (GA) release of the Service (typically including new Features, functionality and/or enhancements) that is subject to the payment of separate fees.

4. Fees

4.1 Fees and Pricing. Fees for the Service are determined by the Subscription Plan selected by Customer and are as set forth in the applicable Order Form. Current pricing for each Subscription Plan is published on Company's pricing page (available at https://www.alien.dev/pricing) and is incorporated into this Agreement by reference. Fees may consist of fixed subscription charges, usage-based charges, or a combination of both, depending on the Subscription Plan selected. Unless otherwise specified in the applicable Order Form, subscription Fees shall be billed in advance on a monthly basis. Usage-based Fees, if applicable, shall be calculated and billed monthly in arrears. Payment must be made through one of the payment methods made available on Company's website at the time of purchase, or as otherwise agreed by the Parties in writing. Company reserves the right to modify its pricing at any time by posting updated pricing on its website; provided, however, that any such modification shall not apply to Customer's then-current Subscription Term. Each Renewal Subscription Term shall be subject to Company's then-current pricing as published on its pricing page at the time of renewal. Company may, in its discretion, attempt to notify Customer of any material change in Fees prior to the commencement of the applicable Renewal Subscription Term, but shall have no obligation to do so, and any failure to provide such notice shall not affect the effectiveness of the updated Fees or Customer's obligation to pay such updated Fees.

4.2 Additional Purchases; Usage Fees. Any Additional Purchases made during a Subscription Term, including any increase to the Subscription Scope, shall be reflected in an updated Order Form, and the corresponding Fees shall be prorated for the remainder of the then-current Subscription Term and shall thereafter renew on a coterminous basis with the applicable Subscription. Unless otherwise stated in the applicable Order Form, any Fees based on usage in excess of the Subscription Scope and any other usage-based Fees shall be billed monthly in arrears and payable within thirty (30) days of the invoice date. For the avoidance of doubt, if Customer exceeds the Subscription Scope, Company may invoice Customer for such excess usage without the need for an additional Order Form or other prior written approval.

4.3 General. Unless expressly stated otherwise in the applicable Order Form: (a) all Fees are stated, and shall be paid, in U.S. Dollars; (b) all payments under this Agreement are non-refundable and are without any right of set-off or deduction; (c) without derogating from the provisions of this Section 4.3, Fees invoiced in advance shall be paid within thirty (30) days following receipt of invoice, and Fees invoiced in arrears shall be paid within thirty (30) days following the invoice date; (d) any amount not paid when due will accrue interest on a daily basis until paid in full, at the lesser of one and a half percent (1.5%) per month and the maximum rate permitted under applicable law; and (e) Company reserves the right to seek reimbursement of reasonable collection costs, including attorneys' fees, incurred in connection with recovering overdue amounts. If Company suspects fraud or a material risk of non-payment, Company may bill Customer more frequently than the billing frequency selected by Customer at checkout.

4.4 Suspension. Company reserves the right to temporarily suspend provision of the Service: (a) if Customer is seven (7) days or more overdue on a payment; (b) if Customer's account balance becomes negative, in which case the Service and all accounts associated with Customer may remain suspended until the outstanding balance is settled and restored to zero or a positive amount; (c) if Company deems such suspension necessary as a result of Customer’s breach under Section 5 (Subscription Restrictions); (d) if Company reasonably determines that such suspension is necessary to avoid material harm to Company or its other customers, including if the Service's cloud infrastructure is experiencing denial-of-service attacks or other disruptions outside of Company's reasonable control; or (e) as required by law or at the request of a governmental authority. Company will use commercially reasonable efforts to provide Customer with prior notice of any suspension where reasonably practicable.

4.5 Taxes. Amounts payable under this Agreement are exclusive of all applicable sales, use, consumption, VAT, GST, and other taxes, duties or governmental charges, except for taxes based upon Company's net income. In the event that Customer is required by any law applicable to it to withhold or deduct taxes for any payment under this Agreement, then the amounts due to Company shall be increased by the amount necessary so that Company receives and retains, free from liability for any deduction or withholding, an amount equal to the amount it would have received had Customer not made any such withholding or deduction. If a purchase order (or purchase order number) is required by Customer in order for an invoice to be paid, then Customer shall promptly provide such purchase order (or number) to Company.

5. Subscription Restrictions

As a condition to the Subscription, and except as expressly permitted otherwise under this Agreement, Customer shall not do (or permit or encourage to be done) any of the following Subscription restrictions (in whole or in part): (a) copy, "frame" or "mirror" the Service; (b) sell, assign, transfer, lease, rent, sublicense, or otherwise distribute or make available the Service to any third party (such as offering it as part of a time-sharing, outsourcing or service bureau environment); (c) publicly perform, display or communicate the Service; (d) modify, alter, adapt, arrange, or translate the Service; (e) decompile, disassemble, decrypt, reverse engineer, extract, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) of, the Service; (f) remove, alter, or conceal any proprietary rights notices displayed on or in the Service; (g) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Service; (h) make a derivative work of the Service, or use it to develop any service or product that is the same as, competes with (or substantially similar to) it; (i) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Service; or (j) take any action that imposes or may impose (as determined in Company’s reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Service, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure (collectively, the “Subscription Restrictions”).

6. Personal Data

Customer hereby warrants and represents that (a) it will provide all appropriate notices, and has obtained and will maintain all required informed consents and licenses and will maintain all ongoing legal bases; and (b) it will comply at all times with any and all applicable privacy and data protection laws and regulations, for allowing Company to use and process the data in accordance with this Agreement (including, without limitation, the provision of such data to Company (or access thereto) and the transfer of such data by Company to its affiliates, subsidiaries, and subcontractors, including transfers outside of the European Economic Area), for the provision of the Service and the performance of this Agreement. To the extent that Customer needs a data processing agreement, Customer shall request Company to provide it with Company’s Data Processing Agreement (“DPA”) and shall return such DPA signed to Company as described therein.

7. Mutual Warranties

Each Party represents and warrants that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; and that the execution and performance of this Agreement will not conflict with other agreements to which it is bound or violate applicable law.

8. Intellectual Property Rights

8.1 Service. As between the Parties, Company is, and shall be, the sole and exclusive owner of all intellectual property rights in and to: (a) the Service and all related software and intellectual property; and (b) any and all improvements, derivative works, and/or modifications to the foregoing, regardless of inventorship or authorship. Customer shall make, and hereby irrevocably makes, all assignments necessary or reasonably requested by Company to ensure and/or provide Company the ownership rights set forth in this paragraph. Company shall be entitled, from time to time, to modify and replace the Features and user interface of the Service, provided that it does not materially diminish the overall functionality of the Service. Nothing herein constitutes a waiver of Company’s intellectual property rights under any law.

8.2 Feedback. If Company receives any feedback (which may consist of questions, comments, suggestions or the like) regarding any of the Services (collectively, “Feedback”), all rights, including intellectual property rights in such Feedback shall belong exclusively to Company and such shall be considered Company's Confidential Information. Customer hereby irrevocably and unconditionally transfers and assigns to Company all intellectual property rights it has in such Feedback and waives any and all moral rights that Customer may have in respect thereto. It is further understood that use of Feedback, if any, may be made by Company at its sole discretion, and that Company in no way shall be obliged to make use of the Feedback.

8.3 Analytic Information. Any anonymous information derived from the use of the Service by Customer, its Users, or End-Customers (i.e., system-level metadata, aggregated and/or analytics information and/or intelligence relating to the operation of, support of, and/or usage of the Service) that is not personally identifiable information, does not identify Customer or any individual End-Customer, and does not include End-Customer Data (“Analytics Information”) may be used by Company to provide the Service, for compliance with applicable laws, and for development and/or statistical purposes. Analytics Information is Company's exclusive property.

9. Customer Data

While using the Services, Customer Data may be made available and/or accessible to Company or the Service. Customer hereby grants Company and its Affiliates a worldwide, non-exclusive, non-assignable (except as provided herein), non-sublicensable (except to Company's subcontractors, if applicable), non-transferable right and license to access and use the Customer Data, including without limitation for Company's provision of the Services and related services hereunder. As the exclusive owner of the Customer Data, Customer represents, warrants, and covenants that, to the extent the Customer Data includes any personally identifiable information, Customer has received and/or obtained any and all required consents or permits and has acted in compliance with any and all applicable laws, including, without limitation, privacy laws, so as to allow Company to receive, transfer, and use the Customer Data solely in order to perform the Service. Company may use or disclose the Customer Data: (a) to satisfy any applicable law, regulation, legal process, subpoena, or governmental request; and/or (b) to collect, store, transfer, and/or process the Customer Data through Company's Affiliates, third-party service providers, and vendors, as reasonably necessary to provide the Service. Company will maintain commercially reasonable administrative, technical, and physical safeguards designed to protect the security, confidentiality, and integrity of the Customer Data. For the avoidance of doubt, the rights and license granted to Company in this Section 9 are limited to Customer Data and do not extend to End-Customer Data. Company shall bear no liability of any kind arising out of or in connection with any End-Customer Data that is inadvertently transmitted to or received by Company as a result of any act, omission, error, bug, or misconfiguration attributable to Customer or Customer's applications, services, or code (and not caused by any act or omission of Company), and Customer shall remain solely responsible for any and all consequences thereof.

10. Third Party Components

The Service may use or include third party open source software, files, libraries or components, or other third party software (collectively, “Third Party SW”), that may be distributed to Customer and are subject to third party license terms. A list of any Third Party SW and related licenses will be provided by Company upon request. If there is a conflict between any third party license and the terms of this Agreement, then the third party license terms shall prevail, but solely in connection with the related third party software. Company makes no warranty or indemnity hereunder with respect to any third party software.

11. Confidentiality

“Confidential Information” means any non-public information disclosed by or on behalf of one Party (“Discloser”) to the other Party (“Recipient”) pursuant to this Agreement that is marked as “confidential,” or in some other manner to indicate its confidential nature. Without limiting the foregoing, the Service is Company’s Confidential Information. Confidential Information does not include any information that: (i) is or becomes generally known and available to the public through no act of the Recipient; (ii) was already in the Recipient’s possession, without a duty of confidentiality owed to the Discloser, at the time of the Discloser’s disclosure; (iii) is lawfully obtained by the Recipient from a third party who has the express right to make such disclosure; or (iv) is independently developed by the Recipient without breach of an obligation owed to the Discloser. The Recipient may use the Discloser’s Confidential Information solely to perform its obligations under this Agreement. Except as set forth in the immediately following sentence, the Recipient will not disclose the Discloser’s Confidential Information to any third party except to its employees, consultants, affiliates, agents, and subcontractors having a need to know such information to perform its obligations under this Agreement and who have signed a non-disclosure agreement with the Recipient containing terms at least as protective of the Discloser’s Confidential Information as those contained herein. The Recipient may disclose the Discloser’s Confidential Information to the extent that such disclosure is required by law or by order of a court or similar judicial or administrative body, provided that it notifies the Discloser of such required disclosure to enable the Discloser to seek a protective order or otherwise to prevent or restrict such disclosure. All right, title, and interest in and to Confidential Information are and will remain the sole and exclusive property of the Discloser. The Recipient will use no less than commercially reasonable efforts to protect the Discloser’s Confidential Information from unauthorized access, use, or disclosure. Notwithstanding anything to the contrary in this Agreement, Company’s obligations with respect to the protection of Customer Data are solely as set forth in Section 9 (Customer Data).

12. DISCLAIMER OF WARRANTIES

Company represents and warrants that, under normal, authorized use, the Service shall substantially perform in conformance with its Documentation. As Customer's sole and exclusive remedy, and Company's sole liability, for breach of this warranty, Company shall use commercially reasonable efforts to repair the Service. The warranty set forth herein shall not apply if the failure of the Service results from or is otherwise attributable to: (i) repair, maintenance, or modification of the Service by persons other than Company or its authorized contractors; (ii) accident, negligence, abuse, or misuse of the Service; (iii) use of the Service other than in accordance with the Documentation; or (iv) the combination of the Service with equipment or software not authorized or provided by Company. OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE AND THE RESULTS THEREOF ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. COMPANY DOES NOT WARRANT THAT: (i) THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS OR OPERATE ERROR-FREE. EXCEPT AS SET FORTH IN SECTION 7 (MUTUAL WARRANTIES) AND THIS SECTION 12, COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, OR FOR ISSUES RELATED TO PUBLIC NETWORKS OR CUSTOMER'S HOSTING SERVICES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, COMPANY SHALL HAVE NO RESPONSIBILITY OR LIABILITY OF ANY KIND, UNDER ANY THEORY OF LIABILITY, FOR: (A) THE AVAILABILITY, PERFORMANCE, LATENCY, ERRORS, OR CORRECTNESS OF CUSTOMER'S APPLICATIONS, SERVICES, OR CODE DEPLOYED VIA THE SERVICE INTO CUSTOMER-CONTROLLED ENVIRONMENTS; (B) DOWNTIME OR UNAVAILABILITY OF ANY UNDERLYING INFRASTRUCTURE PROVIDER ON WHICH A CUSTOMER-CONTROLLED ENVIRONMENT OPERATES; (C) ANY CLOUD INFRASTRUCTURE FEES, CHARGES, OR OTHER COSTS INCURRED BY CUSTOMER OR ITS END-CUSTOMERS IN CONNECTION WITH ANY CUSTOMER-CONTROLLED ENVIRONMENT, INCLUDING THOSE ARISING FROM ANY CONFIGURATION, SCALING EVENT, OR ACTION TAKEN IN THE COURSE OF PROVIDING THE SERVICE, ALL OF WHICH REMAIN SOLELY CUSTOMER'S RESPONSIBILITY; OR (D) THE SECURITY, CONFIDENTIALITY, OR INTEGRITY OF DATA STORED OR PROCESSED WITHIN CUSTOMER-CONTROLLED ENVIRONMENTS, INCLUDING UNAUTHORIZED ACCESS, BREACH, OR DATA LOSS.

13. AI FEATURES

Company may involve and/or allow access to and/or use of artificial intelligence tools and/or Features, including, without limitation, features provided by third parties (collectively, “AI Features”). AI Features provided by third parties are subject to the applicable third party’s terms. When activating and/or using such AI Features, Customer acknowledges and agrees to comply with applicable third party’s terms, and that Customer Data and personal information may be transferred, processed and/or stored by third parties. Results generated by AI Features are automatically produced (by machine), and may be inaccurate, incorrect, contain non-unique elements or display content similar to that shown to other customers or users. Manual or human review is required. The use of AI Features is at the Customer’s own discretion and sole risk.

14. LIMITATION OF LIABILITY

NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF REVENUE, PROFITS, REPUTATION, GOODWILL, DATA, OR DATA USE, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE) AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY’S MAXIMUM AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS, LOSSES, DAMAGES, LIABILITIES, COSTS, AND EXPENSES ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO COMPANY BY CUSTOMER DURING THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE APPLICABLE CLAIM; PROVIDED, HOWEVER, THAT (A) DIRECT LIABILITY ARISING FROM WILLFUL MISCONDUCT OR GROSS NEGLIGENCE SHALL BE UNLIMITED, AND (B) LIABILITY FOR BREACH OF EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS HEREUNDER SHALL BE LIMITED TO THREE (3) TIMES THE TOTAL AMOUNTS ACTUALLY PAID OR PAYABLE TO COMPANY BY CUSTOMER DURING THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE APPLICABLE CLAIM. THIS LIMITATION OF LIABILITY SHALL BE CUMULATIVE AND NOT PER INCIDENT OR PER CLAIM. FOR THE AVOIDANCE OF DOUBT, THE LIMITATIONS SET FORTH IN THIS SECTION SHALL NOT APPLY TO AMOUNTS DUE AND PAYABLE TO COMPANY UNDER THIS AGREEMENT (INCLUDING ITS EXHIBITS).

15. Indemnification

15.1. Company agrees to defend, at its expense, any third-party action or suit brought against Customer alleging that the Services, when used as permitted under this Agreement, infringe the intellectual property rights of a third party (an “IP Infringement Claim”); and Company will pay any damages finally awarded by a court of competent jurisdiction against Customer that are attributable to any such IP Infringement Claim, provided that Customer (i) promptly notifies Company in writing of such claim; and (ii) grants Company the sole authority to handle the defense or settlement of any such claim and provides Company with all reasonable information and assistance in connection therewith, at Company’s expense. Company will not be bound by any settlement that Customer enters into without Company's prior written consent.

15.2. If the Service becomes, or in Company's opinion is likely to become, the subject of an IP Infringement Claim, then Company may, at its sole discretion: (a) procure for Customer the right to continue using the Service; (b) replace or modify the Service to avoid the IP Infringement Claim; or (c) if options (a) and (b) cannot be accomplished despite Company's reasonable efforts, then Company may terminate the affected Subscription (s) upon written notice to Customer, and Customer shall be entitled to receive a pro-rated refund of any prepaid subscription Fees based on the remaining period of the corresponding Subscription Term(s).

15.3. Notwithstanding the foregoing, Company shall have no responsibility for IP Infringement Claims resulting from or based on: (i) Company’s compliance with Customer’s instructions or specifications; or (ii) the combination or use of the Services with equipment, devices or software not supplied by Company.

15.4. This Section 15 states Company's entire liability, and Customer's exclusive remedy, for any IP Infringement Claim.

16. Term and Termination

16.1 Term. This Agreement commences on the Effective Date and, unless terminated in accordance herewith, shall continue in full force and effect for the duration of the Initial Subscription Term. Following the expiration of the Initial Subscription Term, the Subscription shall automatically renew for successive periods of equal duration (each, a “Renewal Subscription Term”, and together with the Initial Subscription Term, the ”Subscription Term”), unless either Party provides the other with written notice of its intent not to renew at least thirty (30) days prior to the expiration of the then-current Subscription Term. Customer may manage its renewal preferences and submit a non-renewal notice through its Account dashboard or by contacting Company at the contact details provided on Company's website.

16.2 Termination for Breach. Each Party may terminate this Agreement immediately upon written notice to the other Party if the other Party commits a material breach under this Agreement and, if curable, fails to cure that breach within sixty (60) days after receipt of written notice specifying the material breach (except that for payment defaults, such cure period will be seven (7) days).

16.3 Termination for Bankruptcy. Each Party may terminate this Agreement upon written notice to the other Party upon the occurrence of any of the following events in respect of such other Party: (a) a receiver is appointed for the other Party or its property, which appointment is not dismissed within sixty (60) days; (b) the other Party makes a general assignment for the benefit of its creditors; (c) the other Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, which proceedings are not dismissed within sixty (60) days; or (d) the other Party is liquidating, dissolving or ceasing normal business operations.

16.4 Effect of Termination; Survival. Upon termination of this Agreement for any reason: (a) the Subscription shall automatically terminate; (b) Customer shall cease all access to and use of the Services thereunder; and (c) Customer shall, as directed, permanently erase and/or return all Confidential Information of Company in Customer's possession or control. Following termination, all outstanding Fees and other charges that accrued as of termination shall become immediately due and payable, and, if necessary, Company shall issue a final invoice therefor. The provisions of this Agreement that, by their nature and content, must survive the termination of this Agreement in order to achieve the fundamental purposes of this Agreement (including limitation of liability) shall so survive. Termination shall not affect any rights and obligations accrued as of the effective date of termination.

17. Miscellaneous

17.1 Entire Agreement. This Agreement, including the DPA (if applicable) and any documents incorporated herein by reference, represents the entire agreement between the Parties concerning the subject matter hereof and supersedes all prior and contemporaneous oral or written understandings and statements relating thereto. This Agreement may be modified by Company in accordance with Section 17.9 below. Any terms and conditions (whether printed, linked, or otherwise) within any purchase order or related correspondence that purport to modify or supplement the terms of this Agreement shall be void and of no effect.

17.2 No Waiver. The failure of either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach shall not be deemed a waiver by that Party as to subsequent enforcement or actions in the event of future breaches. Any waiver granted hereunder must be in writing.

17.3 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect, and such provision shall be reformed only to the extent necessary to make it enforceable.

17.4 Government Use. Any use of the Service by an agency, department, or other entity of the United States government shall be governed solely by the terms of this Agreement.

17.5 Publicity. Customer hereby agrees that (i) Company may use Customer’s name and logo to identify Customer as a customer of Company or user of the Service, on Company’s web site, presentations, marketing materials or otherwise; and (ii) Customer, to the extent requested by Company, shall use commercially reasonable efforts to positively address communications it receives from Company's potential customers. In addition, Customer will cooperate with Company to create a quote/case study that will be published on the Company website. Following the termination of this Agreement, Customer may request Company to remove such customer reference.

17.6 No Third Parties. Except as stated otherwise herein, this Agreement is for the sole benefit of the Parties hereto, and nothing herein, express or implied, shall give, or be construed to give, any rights hereunder to any other person.

17.7 Assignment. Neither Party may assign its rights or obligations under this Agreement without the prior written consent of the other Party, which consent may not be unreasonably withheld or delayed. Notwithstanding the foregoing, this Agreement may be assigned by either Party in connection with a merger, consolidation, sale of all of the equity interests of such Party, or a sale of all or substantially all of the assets of the Party to which this Agreement relates. Without derogating from and subject to the abovementioned, this Agreement will bind and benefit each Party and its respective successors and assigns.

17.8 Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of Delaware without regard to principles of conflicts of law. All disputes arising out of or in connection with this Agreement shall be subject to the exclusive jurisdiction of the courts located in Delaware; provided, however, that nothing in this Agreement shall prevent a Party from seeking injunctive relief to enforce the terms of this Agreement in any applicable venue or jurisdiction as determined in such Party’s sole discretion and convenience. EACH PARTY IRREVOCABLY WAIVES ITS RIGHT TO TRIAL OF ANY ISSUE BY JURY.

17.9 Amendments. Company may update or modify this Agreement from time to time by posting a revised version on its website. If a modification is material, Company will use commercially reasonable efforts to notify Customer by email or through the Service at least thirty (30) days before such modification takes effect. Customer's continued access to or use of the Service following the effective date of any modification shall constitute Customer's acceptance of the revised Agreement. For the avoidance of doubt, any modification to the Fees applicable to Customer's then-current Subscription Term shall take effect only upon the commencement of the next Renewal Subscription Term.

17.10 No Agency. This Agreement does not, and shall not be construed to, create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the Parties. Neither Party has any authority to enter into agreements of any kind on behalf of the other Party.

17.11 Force Majeure. Company will not be liable for any delay or failure to provide the Services resulting from circumstances or causes beyond the reasonable control of Company, including, but not limited to, strikes, shortages, riots, insurrection, fire, flood, storms, explosions, acts of God, war, actions of governmental or quasi-governmental authorities, acts of terrorism, earthquakes, power outages, pandemics or epidemics (or similar regional health crises), or any other cause beyond the reasonable control of Company.

17.12 Notices. Notices to either Party shall be deemed given: (a) four (4) business days after being mailed by airmail, postage prepaid; (b) on the same business day, if dispatched by facsimile or electronic mail before 13:00 hours (local time for the receiving Party) and the sender receives acknowledgment of receipt; or (c) on the next business day, if dispatched by facsimile or electronic mail after 13:00 hours (local time for the receiving Party) and the sender receives acknowledgment of receipt.

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