Managed Service Provider Agreement

IMPORTANT – PLEASE READ CAREFULLY: THIS MANAGED SERVICE PROVIDER AGREEMENT (“AGREEMENT“) IS A LEGAL AGREEMENT BETWEEN YOU (“PARTNER“) AND AXCIENT, INC. (“AXCIENT,”) AND GOVERNS YOUR USE AND SUBLICENSING OF THE AXCIENT SERVICES. AXCIENT AND YOU MAY BE REFERRED TO INDIVIDUALLY AS A “PARTY” OR COLLECTIVELY AS “PARTIES.”

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN AXCIENT ORDER FORM YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE AXCIENT SERVICES.

This Agreement was last updated on November 29, 2016. It is effective between Partner and Axcient as of the date Partner accepts this Agreement (“Effective Date“) as set forth above.

Partner may not access Axcient Services if it is Axcient’s direct competitor, except with Axcient’s prior written consent. In addition, Partner may not access Axcient Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking purposes.

TERMS AND CONDITIONS

This Agreement governs Your access and use, and Our provision, of Axcient Services.

Definitions

“Axcient Service” means the off-site automated data protection, backup, and recovery services that are ordered under an Order Form.

“Order Form” means an ordering document specifying the services to be provided hereunder that is signed by an authorized representative of both Partner and AXCIENT.

“Declared Disaster” means the virtualization of a full or partial environment in the Axcient Cloud for production purposes. Disasters can be declared in the self-service Axcient Web Application or by calling Axcient Support.

“Declared Disaster Recovery Test” means the virtualization of a full or partial environment in the Axcient Cloud for test purposes. Disaster recovery tests can be declared in the self-service Axcient Fusion Web Application or by calling Axcient Support.

Appointment

During the Term, AXCIENT hereby appoints Partner and Partner hereby accepts appointment as AXCIENT’S managed service provider for customers in the Territory set forth in the Order Form.

Rights Granted.

AXCIENT hereby grants to Partner a limited, non-exclusive, non-transferable license under AXCIENT’s intellectual property rights to access and use the Axcient Service in accordance with the Documentation to provide services to customers of Partner (“Customer”).

AXCIENT Marks and Usage: Any usage of the AXCIENT trademarks, service marks and trade names (the “AXCIENT Trademarks”) must be approved by AXCIENT in writing in advance, and is subject to the following license grant: During the Term AXCIENT grants Partner a nonexclusive, revocable, non-sublicensable license to display such AXCIENT Trademarks in connection with this Agreement. Partner’s use of the AXCIENT Trademarks will conform at all times with AXCIENT’s quality and usage requirements and shall be used and displayed in a manner that upholds enhances, and does not detract from or diminish AXCIENT’s reputation and goodwill.

Partner acknowledges that the AXCIENT Service constitutes valuable trade secrets of AXCIENT. Accordingly, Partner shall not: (i) create derivate works from, merge with other intellectual property, modify, customize, reverse engineer, reverse assemble or reverse compile the AXCIENT Service or any part thereof or otherwise attempt to derive the source code or any component thereof; (ii) sublicense, lease, rent, assign, copy, reproduce, modify, pledge, transfer loan, sell or otherwise transfer the AXCIENT Service except as expressly allowed hereunder; (iii) use the AXCIENT Service in any manner that infringes the intellectual property rights of another party; (iv) use the AXCIENT Service except as expressly authorized herein; or (v) cause or permit any third party to do any of the foregoing.

AXCIENT shall retain and own all rights, titles, interests, and all intellectual property rights (including but not limited to, copyrights, trade secrets, trademarks and patent rights) in and to AXCIENT Service and AXCIENT Trademarks. Any rights not expressly granted to the Partner under the Agreement are retained by AXCIENT.

AXCIENT Obligations.

AXCIENT shall provide, at no charge: Basic technical training regarding the AXCIENT Service to Partner through AXCIENT’s online technical training and certification program.

AXCIENT will provide support to Partner according to AXCIENT’S standard support policies in effect at the time support is provided. AXCIENT may also provide support for AXCIENT Services directly to Customers if agreed to by AXCIENT and Partner.

AXCIENT shall maintain a Partner price list and shall notify Partner at least one hundred and twenty (120) days in advance of any price changes. Any price change will be effective January 1 of the following year.

Partner Obligations.

Partner shall require Customers to execute agreements with Partner that include terms and conditions at least as protective of AXCIENT’S rights and no more expansive than AXCIENT’S obligations as those contained in this Agreement (“Service Agreements”). For reference, a specimen of AXCIENT terms and conditions that are an attachment for a Service Agreement is included as Attachment B.

Partner is responsible for providing primary support to Customers in compliance with primary support requirements as set forth in Attachment A.

Partner agrees that it will not advertise the AXCIENT Service at prices equal to or below the Partner Price for the AXCIENT Service, as defined in the Partner Price List in Attachment C. Failure by Partner to comply with the foregoing obligation is a material breach of this Agreement. Notwithstanding the foregoing, nothing in this Agreement restricts Partner’s right to freely establish, in its sole and absolute discretion, the actual price at which it sells AXCIENT Service to Customers.

Partner shall immediately notify AXCIENT in writing if it becomes aware of any facts indicating that the intellectual property rights of AXCIENT have been or are likely to be infringed or that the AXCIENT Service is or may be infringing the intellectual property rights of a third party. Partner shall also immediately notify AXCIENT in writing of any legal action arising from Partner’s provision of the AXCIENT Service.

Partner shall use commercially reasonable efforts to endorse and promote the AXCIENT Service. Partner agrees to adhere in good faith to all written AXCIENT Partner requirements, and in particular agrees to (i) conduct its business in a professional manner in accordance with computer services industry standards, and (ii) not disparage, directly or indirectly AXCIENT or the AXCIENT Services.

Upon notice of termination of a Service Agreement, Partner shall within ninety (90) days of such notice retrieve from its Customer any AXCIENT property (“AXCIENT Property”) and return such AXCIENT Property to AXCIENT at Partner’s expense. Should AXCIENT Property not be returned within the thirty-day period Axcient Service Fees shall continue on a month to month basis and be an obligation of Partner until AXCIENT Property is returned.

Ordering, Invoicing & Payments.

AXCIENT and Partner shall enter into an Order Form setting forth the specific AXCIENT Service(s), term and periodic fees (“Fees”).

AXCIENT shall invoice and Partner shall pay the periodic fees as set forth in the Order Form subject to the payment terms set forth therein. The Fees exclude all applicable taxes, and Partner shall be responsible for payment of all applicable taxes except for taxes on AXCIENT’s income. Partner shall indemnify and hold AXCIENT harmless from any such taxes or claims relating to the payment of taxes or failure to pay all or any portion of taxes.

AXCIENT shall charge a late fee on delinquent payments from the date such amounts were due until paid, at a rate equal to the lesser of (a) the maximum amount chargeable by law, or (b) one and one-half percent (1 ½%) per month. In addition, Partner shall be liable for AXCIENT’s costs of collection, including reasonable attorneys’ fees.

Term and Termination.

Term: The Agreement shall commence on the Effective Date and continue indefinitely unless terminated as set forth below.

Termination: Either Party may terminate this Agreement without cause upon ninety (90) days prior written notice.

AXCIENT may terminate this Agreement and/or any Order Forms (i) immediately upon Partner’s breach of Section 3, (ii) upon Partner’s material breach of this Agreement (other than a failure to pay) if such breach is not cured within thirty (30) days of written notice; (iii) upon Partner’s filing a petition in bankruptcy, being adjudicated bankrupt, not dismissing a petition in bankruptcy that is filed against it within ninety (90) days of filing, becoming insolvent, making an assignment for benefit of creditors, or upon the appointment of a receiver; or (iv) in the event of a failure by Partner to comply with its payment obligations, upon thirty (30) days’ notice of breach and Partner’s failure to pay all amounts due and outstanding.

Partner may terminate this Agreement upon AXCIENT’s material breach of this Agreement if such breach is not cured within thirty (30) days of written notice.

Effect of Termination. Upon termination, any amounts owed to AXCIENT shall be immediately due and payable, all licenses and rights granted hereunder shall immediately terminate, and Partner shall immediately cease all activities as a partner of AXCIENT. The provisions of Sections 3.4, 3.5, 5.4, 5.6, 5.7, 6, 7.2, 8, 9 and 10 shall survive the termination of this Agreement.

Warranty Disclaimer and Limitation of Liability.

AXCIENT warrants to Partner that during the Term the AXCIENT Service shall function in material accordance with AXCIENT’S generally available documentation.

OTHER THAN EXPRESSLY STATED IN SECTION 8.1, AXCIENT MAKES NO WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE AXCIENT SERVICE OR SOFTWARE AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

IN NO EVENT WILL AXCIENT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT. EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 9.1, IN NO EVENT SHALL AXCIENT’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THE AGREEMENT EXCEED THE FEES PAID BY PARTNER TO AXCIENT HEREUNDER DURING THE PRECEDING TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.

Indemnification.

Subject to the terms of this Section 9.1, AXCIENT shall, at its sole cost and expense, defend, or at its sole option, settle, indemnify and hold harmless Partner and the directors, officers, employees and agents of the foregoing (“Partner Indemnitees”) from and against any third party claim that the AXCIENT Service when used in accordance with this Agreement infringes any United States patent, copyright or trademark of a third party. (a “Claim”).

AXCIENT’s obligations to indemnification shall be subject to (a) Partner shall notify AXCIENT of any such Claim promptly after it obtains knowledge of such Claim, (b) Partner shall provide AXCIENT with reasonable assistance, information, and cooperation in defending the lawsuit or proceeding, at AXCIENT’s sole cost and expense, (c) Partner shall give AXCIENT full control and sole authority over the defense and settlement of such Claim, provided settlement fully releases the Partner Indemnitees and is solely for monetary damages and does not admit any liability on behalf of the Partner. Notwithstanding the following, Partner may join in defense and settlement discussions directly or through counsel of Partner’s choice at Partner’s own cost and expense.

Following notice of a Claim or upon any facts which in AXCIENT’s sole opinion are likely to give rise to such Claim, AXCIENT shall in its sole discretion and at its sole option elect to (a) procure for Partner the right to continue to use the AXCIENT Service and software, at no additional cost to Partner or Partner Indemnitees, (b) replace the AXCIENT Service or software so that it becomes non-infringing but functionally equivalent, (c) modify the AXCIENT Service or software to avoid the alleged infringement but in a manner so that it remains functionally equivalent, or (d) terminate this Agreement after providing commercially reasonable advance written notice and provide a refund to Partner of all amounts prepaid by Partner to AXCIENT for Services that have not yet been provided.

Notwithstanding anything contrary contained herein, AXCIENT shall have no obligation to indemnify, defend or hold harmless hereunder to the extent the Claim is caused by or results from: (a) Partner’s combination or use of the AXCIENT Service or software with software, services or products developed by Partner or other third parties, unless specifically contemplated by this Agreement, (b) modification of the AXCIENT Service or software by anyone other than AXCIENT or its agents without AXCIENT’s express approval, (c) Partner’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (d) Partner’s use of the AXCIENT Service or software in a manner not contemplated by this Agreement or the documentation, or (e) Partner’s breach of any of its representations, warranties, obligations or duties under this Agreement or any negligence, recklessness or intentional misconduct or its failure to abide by all applicable laws, rules, regulations or orders that affect the AXCIENT Service or software.

The foregoing states the sole and exclusive liability and sole remedy of AXCIENT for any infringement of intellectual property rights.

Partner shall, at its sole cost and expense, defend, or at its sole option, settle, indemnify and hold harmless AXCIENT and the directors, employees and agents of the foregoing from and against any third-party claim based on (i) Partner statements about the AXCIENT Service which deviate from those provided by official AXCIENT publication(s) or training or (ii) any deviation, addition or removal of any of the terms and conditions stated in Attachment B.

General.

Neither the Agreement nor any license hereunder may be assigned (whether by operation of law or otherwise) by Partner without AXCIENT’s prior written consent.

The parties each agree that during the term of this Agreement and for a period of two (2) years after its expiration or termination each party will not solicit or encourage any of the other party’s employees or consultants to leave the employ of the other party.

Except as provided in Section 8, the parties’ rights and remedies under the Agreement are cumulative. Both parties shall be entitled to seek injunctive relief (without the requirement of posting a bond) with regard to any breach by the other party (other than a breach for failure to pay).

Waiver of any breach or failure to enforce any term of the Agreement shall not be deemed a waiver of any breach or right to enforce which may thereafter occur. If any provision of the Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not affect the validity or enforceability of any other part or provision of this Agreement.

Neither party shall be held liable for any damages or penalty for delay in the performance of its obligations hereunder (other than Partner’s obligation to make payments under the Agreement) when such delay is due to the elements, acts of God, or other causes beyond its reasonable control.

The AXCIENT Services are subject to the customs and export control laws and regulations of the United States and may be subject to the customs and export laws and regulations of the country in which the products are manufactured or received. If the AXCIENT Service is licensed for use outside of the United States the Partner agrees to comply fully with all relevant export laws and regulations of the United States and the country or territory in which the AXCIENT Service is used, to assure that neither the AXCIENT Service nor any direct product thereof, are exported, directly or indirectly, in violation of such laws. Under United States law, the AXCIENT Service may not be sold, leased or otherwise transferred to restricted countries, or used by a restricted end-user or an end-user engaged in activities related to weapons of mass destruction.

Each party agrees that all code, inventions, algorithms, business concepts, workflow, ideas, and all other business, technical, and financial information they obtain from the other in connection with this Agreement are the confidential property of the disclosing party (“Proprietary Information”). Except as authorized herein, the receiving party will hold in confidence and not use, except as permitted or required in this Agreement, or disclose any Proprietary Information of the disclosing party and shall similarly bind its employees in writing. The receiving party shall not be obligated under this Section 10.7 with respect to information the receiving party can document: (i) is or has become readily publicly available without restriction through no fault of the receiving party or its employees or agents, or (ii) is received without restriction from a third party lawfully in possession of such information and lawfully empowered to disclose such information, or (iii) was rightfully in the possession of the receiving party without restriction prior to its disclosure by the other party, or (iv) was independently developed by employees or consultants of the receiving party without access to such Proprietary Information. Except as otherwise authorized or required in furtherance of the purposes of this Agreement, promptly upon a request by the disclosing party at any time the receiving party will destroy or return to the disclosing party all Proprietary Information of the disclosing party and all documents or media containing any such Proprietary Information and any and all copies or extracts thereof. Each party acknowledges and agrees that due to the unique nature of the disclosing party’s Proprietary Information, there can be no adequate remedy at law for any breach of its obligations hereunder, which breach may result in irreparable harm to the disclosing party, and therefore, that upon any such breach or any threat thereof, the disclosing party shall be entitled to appropriate equitable relief in addition to whatever remedies it might have at law. The terms and conditions, but not the existence, of this Agreement, in whole or part, is Proprietary Information under this Section 10.7; provided, however, that this Agreement may be disclosed as necessary in connection with a financing or change of control transaction.

If Partner is a branch or agency of the United States Government, the following provision shall apply. As defined in FAR section 2.101, DFAR section 252.2277014(a)(1), and DFAR section 252.2277014(a)(5) or otherwise, all AXCIENT Services and accompanying documentation provided by AXCIENT are “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the US. Government shall be governed solely by the terms of the Agreement and shall be prohibited except to the extent expressly permitted by the terms of the Agreement.

Except as provided below, any and all disputes arising from or relating to the subject matter of this Agreement or any interpretation of the Agreement, shall be settled by binding arbitration in accordance with the rules then in effect of the American Arbitration Association or Judicial Arbitration and Mediation Services. Judgment upon the award rendered by way of such arbitration may be entered in any court having jurisdiction thereof. Costs of arbitration (including reasonable attorneys’ fees) shall be made a part of the arbitrator’s award. The arbitration will take place in San Francisco, California. Notwithstanding the foregoing, the parties retain the right to obtain injunctive relief from a court specified in Section 10.10.

The agreement shall be governed by and construed under the laws of the State of California excluding its conflict of law rules. It shall not be governed by the United Nations Convention on the International Sale of Goods, the application of which is expressly excluded. The exclusive jurisdiction and venue of any action with respect to this agreement shall be the Superior Courts of San Francisco County, San Mateo County, Santa Clara County, or the United States District Court for the Northern District of California and each party submits itself to the jurisdiction of such courts.

During the Term, Partner shall carry and maintain in full force and effect professional liability, errors, and omissions insurance in the amount of at least one million dollars ($1,000,000).

THE AGREEMENT CONSTITUTES THE COMPLETE AND EXCLUSIVE UNDERSTANDING OF THE PARTIES AND SUPERSEDES ALL PRIOR PROPOSALS, NEGOTIATIONS, AGREEMENTS, AND OTHER REPRESENTATIONS OR COMMUNICATIONS, WHETHER ORAL OR WRITTEN. IF THERE IS ANY CONFLICT BETWEEN THE TERMS AND CONDITIONS OF ANY OTHER DOCUMENT AND THE TERMS AND CONDITIONS OF THE AGREEMENT, THE AGREEMENT SHALL CONTROL. THE AGREEMENT MAY BE MODIFIED, REPLACED, OR RESCINDED ONLY IN A WRITING AND SIGNED BY A DULY AUTHORIZED REPRESENTATIVE OF EACH PARTY.

Attachment A

PRIMARY CUSTOMER SUPPORT

Partner is responsible for all support-related communications with their Customer.

Within ninety (90) days of the effective date of the Agreement, Partner shall have and thereafter maintain throughout the Term at least one (1) employee who has successfully completed the basic technical training program provided by AXCIENT.

Technical and support issues that pertain to the Axcient Service, as described in the Axcient product documentation and are taught in the AXCIENT technical training program, are considered “Primary”.

Partner is expected to resolve Primary support issues without the involvement of AXCIENT.

For issues more complex than Primary, AXCIENT will provide technical support to Partner, using reasonable efforts to isolate, diagnose, and resolve issues pertaining to the AXCIENT Service.

Only those employees of Partner who have successfully completed the AXCIENT basic technical training program will be certified to contact AXCIENT technical support for problem resolution.

If AXCIENT determines an issue lies outside the AXCIENT Service, details of the determination will be supplied to the Partner, along with any recommended actions for the Partner to take. AXCIENT is specifically not obligated to resolve issues related to the client network, equipment, systems or software.

If the AXCIENT Service is used in a manner that is outside the supported configurations and guidelines, as outlined in the AXCIENT documentation, then AXCIENT will not be obligated to resolve issues resulting from the unsupported use of the AXCIENT Service.

Partner will abide by standard AXCIENT procedures for obtaining technical support, including logging cases via the AXCIENT Partner Portal and cooperating with AXCIENT personnel working to resolve the case. This may include, and is not limited to, providing AXCIENT with technical specifics that are relevant to the case, timely responses to questions and requests for additional information by AXCIENT, understanding that AXCIENT may access the appliance remotely, and granting access to specific Customer systems to aid in issue troubleshooting and resolution.

Attachment B

TERMS AND CONDITIONS

Provision of Service.

Subject to the terms and conditions of the Agreement, AXCIENT hereby agrees to provide to Customer during the term of this Agreement the AXCIENT Service.

AXCIENT agrees to hold confidential all of Customer’s data in its possession exercising the same degree of care that a company utilizing industry-accepted business practices would exercise with similar data of its own. AXCIENT will implement reasonable security and environmental precautions to promote an appropriate level of system availability and data protection and recovery.

Use of Axcient Services.

Subject to the terms and conditions of this Agreement, AXCIENT hereby grants to Customer a non-exclusive, non-transferable right to use the Axcient Service solely for Customer’s internal business purposes and in accordance with the Agreement.

Customer shall not, and shall not have others, modify, customize, reverse engineer, reverse assemble or reverse compile Axcient Service. In the event that Customer believes that the Axcient Service is not functioning according to standard written specifications, Customer shall contact AXCIENT immediately and inform them of the problem.

Customer acknowledges and agrees that it is acquiring only the right to use the Axcient Service during the term of the Agreement. AXCIENT shall retain all rights of ownership in and to the Axcient Service, all copyrights and other intellectual property rights vested in and to Axcient Service, and all modifications thereto, including derivative works, and changes to the Axcient Service under the Agreement. Customer agrees that, as between the parties, the Axcient Service (in whole or part) shall remain the exclusive property of AXCIENT and may not be copied or used except as expressly authorized by this Agreement. Any rights not expressly granted to the Customer under the Agreement are retained by AXCIENT.

Customer Obligations.

Customer will perform regular backups using the Axcient Service to an AXCIENT Data Center. Customer will report any errors in executing such backups promptly by entering them in the support portal, or via fax or e-mail to AXCIENT. Customer will arrange for and maintain communication services used to connect to AXCIENT’s Data Center. Customer is responsible for any communication costs associated with the connection between Customer’s site and AXCIENT’s Data Center. Customer shall implement reasonable security and environmental precautions to ensure a high level of system availability and data protection and recovery.

Customer covenants and agrees that Customer shall not place any data in an AXCIENT Data Center that (i) infringes the intellectual property rights or privacy rights of any third party, (ii) violates any law, statute, ordinance or regulation, (iii) is defamatory, libelous, unlawfully threatening or harassing, (iv) is obscene, or contains any viruses, Trojan horses, worms, time bombs, cancel bots or other programming routines that are intended to or have the effect of damaging, detrimentally interfering with, surreptitiously intercepting or expropriating any system, data or personal information. Customer shall defend, indemnify and hold AXCIENT harmless against any third-party claim, suit or proceeding alleging any breach of the covenants contained in this Section.

Price and Payment Terms.

Customer shall pay AXCIENT the service fees described in the Agreement. Amounts shall be charged to the Partner credit card on the tenth (10th) of each month, however, any disputed charges shall not be charged until the dispute is settled.

AXCIENT may charge a late fee on delinquent payments from the date such amounts were due until paid, at a rate equal to the lesser of (a) the maximum amount chargeable by law, or (b) 1½% per month. In addition, Partner shall be liable for AXCIENT’s costs of collection, including reasonable attorneys’ fees.

AXCIENT fees are exclusive of any sales, use, excise, value-added, or similar taxes, and exclusive of any duties or fees payable on the delivery of the AXCIENT Service in countries other than the United States. Any such taxes, duties, or fees that are required to be levied shall be added to the AXCIENT invoice or paid directly by Customer.

Warranty Disclaimer and Limitation of Liability.

Customer acknowledges that it is responsible for determining whether the AXCIENT Service is appropriate for Customer’s data protection needs. AXCIENT’s sole warranty is that the AXCIENT Service shall substantially comply with any standard specifications provided in writing by AXCIENT. Customer’s sole and exclusive remedy and AXCIENT’s entire liability under this Agreement shall be limited to the following: (i) AXCIENT shall use reasonable commercial efforts to correct any substantial non-compliance with the above warranty; (ii) if such non-compliance cannot be corrected after using commercially reasonable efforts, Customer may terminate the Agreement and receive a refund of any amounts paid since the time of the non-compliance.

EXCEPT FOR THE LIMITED WARRANTY IN SECTION 5.1 ABOVE, AXCIENT MAKES NO WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE AXCIENT SERVICE INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFIRNGEMENT. CUSTOMER ACKNOWLEDGES IT HAS RELIED ON NO WARRANTIES WITH RESPECT TO THE AXCIENT SERVICE IN ENTERING INTO THIS AGREEMENT.

IN NO EVENT WILL AXCIENT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THE AGREEMENT. IN NO EVENT SHALL AXCIENT’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THE AGREEMENT EXCEED THE AMOUNT OF FEES AND AMOUNTS PAID BY THE CUSTOMER UNDER THE AGREEMENT. CUSTOMER ACKNOWLEDGES THAT THE AMOUNTS PAID UNDER THE AGREEMENT REFLECT THE ALLOCATION OF RISK SET FORTH IN THE AGREEMENT AND THAT AXCIENT WOULD NOT ENTER INTO THE AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.

Term and Termination.

The term of AXCIENT Service shall be specified in the Agreement. The Agreement shall automatically renew at the end of the term unless Customer provides AXCIENT with 30 days written notice of termination.

Either Party may terminate this Agreement (i) upon the occurrence of a material breach of a material provision of this Agreement (other than a failure to pay) if such breach is not cured within ninety (90) days of written notice; (ii) upon the other party’s filing a petition in bankruptcy, being adjudicated bankrupt, not dismissing a petition in bankruptcy that is filed against it within ninety (90) days of filing, the other party becoming insolvent, the other party making an assignment for benefit of creditors, or a receiver is appointed for the other party.

In the event of a failure by Customer to comply with its payment obligations, AXCIENT may terminate this Agreement and rights to use the AXCIENT Service upon sixty (60) days written notice.

Upon termination, Customer shall promptly pay any amounts due and owing to AXCIENT, and return any AXCIENT property. If requested by AXCIENT, Customer shall certify to AXCIENT that it has complied with this Subsection 6.2.

AXCIENT agrees that after expiration or termination of the AXCIENT Service, all data of Customer shall be removed and deleted sixty (60) days after such termination or expiration.

The provisions of Sections 1.2, 2, 4, 5, 6 and 7 shall survive the termination of this Agreement.

General.

Neither the Agreement nor any rights granted hereunder may be assigned (whether by operation of law or otherwise) by Customer without AXCIENT’s prior written consent.

Except as provided in Section 5, the parties’ rights and remedies under the Agreement are cumulative. AXCIENT shall be entitled to seek injunctive relief (without the requirement of posting a bond) with regard to any breach by Customer (other than a breach for failure to pay).

The Agreement is the entire agreement of the parties and supersedes all previous and contemporaneous communications, representations, or agreements regarding the subject matter hereof. The Agreement may be modified only in writing signed by both parties. Waiver of any breach or failure to enforce any term of the Agreement shall not be deemed a waiver of any breach or right to enforce which may thereafter occur. If any provision of the Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not affect the validity or enforceability of any other part or provision of this Agreement.

Neither party shall be held liable for any damages or penalty for delay in the performance of its obligations hereunder (other than Customer’s obligation to make payments under the Agreement) when such delay is due to the elements, acts of God or other causes beyond its reasonable control.

The Axcient Service is subject to the customs and export control laws and regulations of the United States and may be subject to the customs and export laws and regulations of the country in which the products are manufactured or received. If the Axcient Service is for use outside of the United States the Customer agrees to comply fully with all relevant export laws and regulations of the United States and the country or territory in which the Axcient Service is used, to assure that neither the Axcient Service, nor any direct product thereof, are exported, directly or indirectly, in violation of such laws. Under United States law, Axcient Service may not be sold, leased or otherwise transferred to restricted countries, or used by a restricted end-user or an end-user engaged in activities related to weapons of mass destruction.

If the Customer is a branch or agency of the United States Government, the following provision shall apply. As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(5) or otherwise, all Axcient Services and accompanying documentation provided by AXCIENT are “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the US. Government shall be governed solely by the terms of the Agreement and shall be prohibited except to the extent expressly permitted by the terms of the Agreement.

Any entity licensing computer software to AXCIENT or its subsidiaries is hereby specified as a third-party beneficiary of the Agreement. AXCIENT will be responsible for all third-party beneficiary reporting.

The agreement shall be governed by and construed under the laws of the State of California excluding its conflict of law rules. It shall not be governed by the United Nations Convention on the International Sale of Goods, the application of which is expressly excluded. The exclusive jurisdiction and venue of any action with respect to this agreement shall be the Superior Court of San Francisco County or the United States District Court for the Northern District of California and each party submits itself to the jurisdiction of such courts.