Master Subscription and Professional Services Agreement

EXTERRO MASTER SOFTWARE LICENSE AGREEMENT

EXTERRO, INC. (“EXTERRO”) IS WILLING TO LICENSE THE LICENSED SOFTWARE TO YOU AS THE INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY THAT WILL BE UTILIZING THE LICENSED SOFTWARE (REFERENCED BELOW AS “CUSTOMER”) ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS LICENSE AGREEMENT (“LICENSE AGREEMENT”). READ THESE TERMS CAREFULLY BEFORE ENROLLING FOR OR USING THE SERVICE. BY OPENING THE LICENSED SOFTWARE PACKAGE, BREAKING THE LICENSED SOFTWARE SEAL, CLICKING THE “I AGREE” OR “YES” BUTTON, OR OTHERWISE INDICATING ASSENT ELECTRONICALLY, OR LOADING THE LICENSED SOFTWARE, DOWNLOADING THE LICENSED SOFTWARE OR OTHERWISE USING THE LICENSED SOFTWARE, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT. IF YOU DO NOT AGREE WITH THESE TERMS, YOU MAY NOT ACCESS OR OTHERWISE USE THE SERVICE. BY USING THE SERVICE, YOU INDICATE YOUR ACKNOWLEDGMENT THAT YOU HAVE READ AND ACCEPTED THESE TERMS. THE TERMS AND CONDITIONS OF THIS LICENSE ARE SPECIFICALLY INCORPORATED BY THIS REFERENCE INTO YOUR QUOTE OR PURCHASE ORDER UNLESS SPECIFICALLY AMENDED BY A MUTUALLY EXECUTED MASTER SOFTWARE LICENSE AGREEMENT OR OTHER WRITING SIGNED BY YOU AND EXTERRO. IF YOU ENTER 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. IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. THIS AGREEMENT GOVERNS YOUR ACCESS AND USE OF EXTERRO’S SERVICES AND SOFTWARE.

1. Definitions.
   1. “Affiliate” means with respect to Customer or Exterro, all entities controlling, controlled by or under common control with Customer or Exterro, and the term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management, operations or policies of such entity, organization or body, whether through ownership of voting securities, by contract or otherwise.
   2. “Authorized User” means Customer’s employee, contractor, consultant, or outsourcing service provider who is authorized by Customer, and who is authorized pursuant to any applicable export control regulations, to be provided registered access to the Software to perform work for or on behalf of Customer and for whom access to the Software has been licensed hereunder.
   3. “Available” or “Availability” means that the Software) is readily available to Customer and operates in accordance with the product Documentation.
   4. “Confidential Information” means all confidential information, whether commercial, financial, technical or otherwise,  disclosed by one party to the other party, which information may be contained in or discernible from any form whatsoever (including without limitation, oral, documentary, magnetic, electronic, graphic or digitized form or by demonstration or observation), whether or not that information is marked or designated as confidential or proprietary (whether arising prior to or during the term of this Agreement), including but not limited to all products, Intellectual Property, hardware, Software, information belonging to or in respect of Exterro or Customer (or any of their Affiliates) which relate to any research, development, trade secrets, know-how, ideas, concepts, formulae, processes, policies, records, testing results, audit findings, assessments, security or other questionnaire responses, designs, specifications, past, present and prospective business, current and future products and services, internal management, information technology and infrastructure and requirements, finances, marketing plans and techniques, price lists and lists of, and information about, customers and employees, and all materials and information belonging to third parties in respect of which either party (or any of their affiliates) owe obligations of confidence.
   5. “Content” means informational content, such as operational risk listings or categories, sample report templates or illustrative databases contained in the Software or supplied by or on behalf of Exterro to Customer with the Software, as may be updated from time to time.
   6. “Customer Data” means any data and information that Customer generates using the Software or otherwise provides or makes available to Exterro during the term of this Agreement. Customer Data may include Personal Information. 
   7. “Data Connector”, as may be set forth in an Order Form, means Exterro Software that enables Exterro’s platform to transfer data with a Customer resource that requires a unique set of credentials with proper network permissions, and configuration for use with the Software.
   8. “Defect” means a problem causing the Software to not conform to the Documentation.
   9. “Deliverables” means the training, project workflows, performance capabilities, and any other activity or document completed as a result of using the Software. It includes informational Content. Exterro does not provide custom programming and thus, no work product is created as a result of Exterro Professional Services.
   10. “Delivery” is defined in Section 5.2.
   11. “Documentation” means Exterro’s electronic and hardcopy user guide for the Software, which may be updated by Exterro from time to time.
   12. “Harmful Code” means any software code that contains any virus, back door, time bomb, Trojan Horse, worm, drop dead device or other software routine designed to (i) permit unauthorized access to, or use of, computing equipment or networks, (ii) replicate, transmit, or activate itself without control of a person operating the computing equipment on which it resides, or (iii) alter, disable, damage, or erase any other software without authorization.
   13. “Hosted Software” means software hosted in an environment provided and managed by Exterro as set forth in an Order Form.
   14. “Intellectual Property” means all common law, statutory and other registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to industrial property rights, copyrights, trademarks, trade secrets, patents and other proprietary rights issued, honored or enforceable under any applicable laws anywhere in the world, all moral rights related thereto, database rights, patentable ideas, inventions, patent applications, patent registrations, patent renewals, know-how, service marks, trade names, service names, all rights in the nature of unfair competition rights, and rights to sue in passing off, and confidentiality or any other similar proprietary right arising or enforceable under applicable law.
   15. “Media” means the physical object on which Documentation is recorded or printed, as provided by Exterro to Customer.
   16. “Order” or “Order Form” means the separate document, including an invoice, under which Customer subscribes to the Subscription and Professional Services pursuant to this Agreement that has been fully executed by the Parties. An Order Form specifies the term of authorized use of the Software (“Subscription Term”), the fees and other charges for the Software (“Subscription Fees”), any special payment terms, the scope of use, and the numbers, types and identifiers of permitted users, applications, servers, devices, capacity, and locations at or through which the Customer is permitted to use the Software.  
   17. “Personal Information” means information relating to a person that identifies such person or could reasonably be used to identify such person, either from the information itself or by combining the information with information from other sources obtained pursuant to the Services.  Personal Information is a person’s name, image, likeness, voice, address, phone number, fax number, e-mail address, IP address, account number, social security number or other government-issued identifier, credit information, employee information, employer-issued identifier, medical or health information and financial information. 
   18. “Production” means the Customer’s use of the Software in its business processes or Exterro’s written verification of the availability of the Software to Customer for use in its business processes.
   19. “Personnel” means Exterro and its Affiliates’ respective employees, authorized agents, or qualified third-party contractors.
   20. “Professional Services” means training, system configuration, and other services provided by Exterro to Customer beyond the scope of their Subscription (defined below) and set forth in an accompanying Purchase Order or Statement of Work (“SOW”) mutually agreed by the Parties. 
   21. “On-Premises Software” means software which is deployed by Customer in their environment or location on their End Points, if applicable. The number and scope of licenses is set forth in an accompanying Order Form.
   22. “Software” means collectively Hosted Software and/or On-Premises Software. 
   23. “Subscription” means the Hosted Software and/or On-Premises Software and related maintenance and Support provided by Exterro for the Term set forth in an Order Form.
   24. “Subscription Fee” means the amount of the recurring charges set forth in an Order Form that a Customer is obligated to pay for the Subscription.
   25. “Support” means the efforts expended by Exterro to ensure that the Software is readily available to Customer and operates in accordance with the Documentation and included as a component of the Subscription Fee. Customer may view Exterro ’s Support plan or request Support at the online portal http://support.exterro.com for Exterro Software.
   26. “Training” means the then current Exterro training products, including all courses, (whether recorded, live, online, or customized, regardless of location), course materials (curricula, manuals, media, or other course-related materials) and course Content developed by Exterro and offered to the public.
   27. “Update” means any enhancements, improvements, corrections, versions, service packs or other modifications of or to the Software, including an update of the Software that adds new functionality.
   28. “Use” or “Using” means (a) to install, download, execute, access, utilize, or display any Software or interact with its functionality or processing capabilities, in accordance with the terms of this Agreement, and (b) to read, process or utilize the Documentation or Media in connection with Use of the Software. 
2. License Grant. 
   1. General. Exterro hereby grants and Customer hereby accepts a Subscription-based, non-exclusive, non-transferable, and non-sublicensable, Use of the Software for the term set forth in an Order Form, in accordance with the terms and conditions of this Agreement. The Software is licensed not sold; Exterro reserves all rights not expressly granted under this Agreement.  Each Order Form is hereby incorporated into and made a part of this Agreement for that Order.  The Parties hereby acknowledge and agree that Exterro is not engaged in the practice of law and is not providing legal advice to Customer. 
   2. Usage Limitation. The Software may contain a device or license key(s) that limits usage as set forth in the Order Form.
   3. Other Terms of License Grant. With respect to any license granted hereunder:
      1. Except as expressly authorized by Section 2.5 (Affiliate Use) the Subscription license(s) granted hereby is limited to Use by Customer’s Authorized Users and Customer shall be fully responsible and liable for its Authorized Users’ compliance with the terms and conditions of this Agreement;
      2. Subscriptions for Software and Support are licensed as set forth in the applicable Order Form;
      3. Customer is solely responsible for meeting the hardware specifications as set forth in the Documentation necessary for use of the Software; and
      4. No license is herein granted with respect to source code of any kind.
   4. Restrictions.  Customer may enable access of the Service for use only by Authorized Users solely for the internal business purposes of Customer and its Affiliates in accordance with the Documentation and not for the benefit of any third parties, unless otherwise explicitly set forth in an Order Form.  Customer shall not: (a) reverse engineer or otherwise attempt to discover the source code of or trade secrets embodied in the Software; (b) distribute, transfer, lease, grant sublicenses, or otherwise make available the Software to third parties other than Authorized Users (including as an application service provider, service bureau, or rental source); (c) embed or incorporate in any manner the Software into websites other than Exterro’s Hosted Software websites (d) except as enabled by an application programming interface released by Exterro, create add-ons, plug-ins, extensions, modifications to or derivative works of the Software; (e) remove the copyright, trademark, or any other proprietary rights or notices included within the Software and on and in the Documentation; (f) use the Software in a manner not authorized under the Documentation or in violation of any applicable law, rule or regulation, including any applicable export/import laws, such as the Export Administration Regulations administered by the U.S. Department of Commerce, the laws and regulations administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations administered by the U.S. Department of State; or (g) in any way access or use the Software to directly or indirectly develop, promote, distribute, sell or support any product or service that is competitive with the Software.
   5. Affiliate Use of Customer’s Subscription. Any Customer Affiliate may Use the Software pursuant to Customer’s Subscription so long as such Affiliate Uses the Software for its own and/or Customer’s internal business purposes in accordance with this Agreement, and (b) the Affiliate agrees to comply with the terms of this Agreement.  Where Affiliates are included, all references to Customer in this Agreement and any applicable Order will apply equally to such Affiliates whether specified or not. Customer and Customer’s Affiliate(s) shall be jointly and severally liable for all Order Forms, obligations, acts and omissions of its’ Affiliate. Use by Affiliates counts toward Authorized User and Subscription totals and must be included in the applicable Order Form for a Subscription. 
   6. Affiliate Use of Separate Subscription. The terms and conditions of this Agreement apply to any Customer Affiliate ordering under a separate Order Form and said Affiliate shall be liable for all obligations contained herein and as set forth in the Order Form.
   7. Exterro Affiliates. An Exterro Affiliate may license products to Customer or Customer Affiliates pursuant to this Agreement.  The Exterro and Exterro Affiliates are collectively called “Exterro”. 
   8. Copies. Customer and Customer’s Affiliates shall not make copies of Hosted Software. Solely in the event On-Premises Software is licensed to Customer, Customer may:
      1. Unless otherwise provided for in an Order Form, make no more than two copies to install and use solely at Customer’s sites as may be required solely for Customer’s internal business purposes; and
      2. Make a reasonable number of copies of the Documentation solely for Customer’s internal use in conjunction with the On-Premises Software, as applicable.
      3. Customer shall affix to all full or partial copies of the On-Premises Software, On-Premises Software Updates, and Documentation made by Customer, all copyright and other proprietary notices contained in or on the original, as delivered to Customer. 
   9. Delivery of On-Premises Software.  Exterro shall deliver the On-Premises Software, Documentation, and any On-Premises Software Updates via file transfer protocol or as otherwise set forth in an Order Form. 
3. Support.
   1. Hosted Software Support.  Exterro will provide the Support in accordance with the support policy located at https://www.exterro.com/resources/product-briefs/exterro-subscription-service-guide-saas-hosted to Customer during the Subscription Term. Exterro may modify the Support in its discretion provided that any modifications will not materially degrade from the current support service, and any changes will apply after posting on the support website. 
   2. On-Premises Software Support.  With respect to On-Premises Software, Exterro will provide the support services in accordance with the support policy located at https://www.exterro.com/resources/product-briefs/exterro-subscription-service-guide-on-premises to Customer during the Subscription Term.  Customer shall install one of the two most recent Updates of the Software.  Customer acknowledges that Customer’s failure to timely install any Updates as required in this Section shall excuse Exterro’s Support and warranty obligations herein, if any, if and to the extent any performance issues thereby would have been avoided or mitigated by Customer’s timely installation of such Updates. Exterro may modify the Support in its discretion provided that any modifications will not materially degrade from the current Support, and any changes will apply after posting on the support website.
      1. On-Premises Software Support Exclusions.  Exterro Support will not include: (a) resolution of problems to the extent resulting from: (i) any modification of or damage to the Software or Customer’s operating environment, (ii) Customer’s failure to operate the Software in an approved hardware and software environment or otherwise in accordance with applicable Exterro Documentation, or (iii) Customer’s failure to implement any Updates as required in Section 3.2 (On-Premises Software Support) above; or (b) any Support obligations of any kind, if and to the extent Customer is in default with respect to payment of undisputed Subscription Fees.
   3. Support Cooperation.  Throughout the applicable term of this Agreement, Customer shall cooperate with Exterro in investigating and seeking to identify the cause of any claimed failure of the Software or any aspect of the Software to perform in accordance with this Agreement. 
   4. Software Support Termination.  If Customer's Subscription is terminated for any reason, all access to the Software Updates, Support and Professional Services will terminate automatically.
4. Term and Renewal.
   1. Term.  The Agreement will begin on the Effective Date and will continue in effect for as long as there are Order Forms in force or the Customer has not provided notice of non-renewal, unless terminated earlier in accordance with Section 13 (Termination).
   2. Renewal.  Following the initial term defined in the Order Form, an Order Form shall automatically renew for successive one-year terms (each, a “Renewal Term”) until such time as Customer provides Exterro with written notice of termination; provided, however, that: (a) such notice be given no fewer than thirty (30) calendar days prior to the last day of the then current term; and, (b) any such termination shall be effective as of the date that would have been the first day of the next Renewal Term.  
5. Order, Delivery, and Payment.
   1. Order.  Customer may subscribe to additional products and Professional Services via a mutually signed Order Form and a SOW, if applicable. 
   2. Delivery.  After Customer executes this Agreement for its Subscription or Exterro’s acceptance of an Order, delivery of the Software will be deemed complete when the Software is made available for use from Exterro ’s hosting environment, or an FTP site, whichever applies (hereafter “Delivery”).
   3. Payment Terms. 
      1. Payment and Taxes.  All Subscription Fees and Professional Services fees and expenses are in U.S. Dollars (USD).  Customer shall pay fees as set forth in the Order Form.  Subscription Fees do not include federal, state, or local sales, use, service, value-added, or similar taxes (“Tax(es)”). Taxes are separately itemized on each invoice, if applicable. 
      2. Manner of Invoicing.  Customer is responsible for the timely communication of any vendor set-up and invoice submission requirements for vendor payments (e.g., purchase orders, vendor registration forms, use of an independent portal for invoice submission, etc.). Any fees associated with the submission of an invoice and/or receipt of payment are the responsibility of Customer.
   4. Invoicing.  Subscription Fees are invoiced annually in advance, unless otherwise specified on the Order Form.  Professional Services fees are invoiced as set forth in the applicable SOW and/or Order Form (including reasonable travel expenses) monthly in arrears. Customer shall pay each invoice for Subscription Fees in full within thirty (30) days after the date of invoice.  Except as otherwise stated in an Order Form, all fees are based on Subscription rights acquired and not actual usage.  Customer shall reimburse Exterro for all pre-approved travel and living expenses incurred by Exterro in the performance of Professional Services pursuant to a SOW under this Agreement. 
   5. Overdue Payments.  Any amounts not paid when due will accrue interest at the rate of one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid. Exterro may accept any check or payment in any amount without prejudice to Exterro's right to recover the balance of the amount due or to pursue any other right or remedy. No endorsement or statement on any check or payment or in any letter accompanying a check or payment or elsewhere is to be construed as an accord or satisfaction. If Customer fails to cure the delinquency after Exterro has provided thirty (30) days’ notice, Exterro may, in addition to its other rights and remedies provided hereunder or at law, terminate or suspend the affected Subscription or Professional Service.
   6. Non-Cancelable and Non-Refundable Fees.  Except as specifically set forth to the contrary under Section 10 (Warranties and Disclaimers), Section 11 (Indemnification), and Section 15 (Termination) all payment obligations under all Order Forms are non-cancelable, and all payments are non-refundable. The license rights for the number of Authorized Users set forth on any respective Order Form cannot be decreased during the Term.
6. Customer Responsibilities. 
   1. Customer Responsibilities.  Customer is responsible for all Authorized Users’ use of the Subscription and compliance with this Agreement.  Customer shall: (a) have sole responsibility for the accuracy, quality, and legality of all Customer Data entered by Customer into Exterro Software, including ensuring the compliance with all relevant legal and regulatory requirements applicable to it and the submission of Customer Data to the Subscription; (b) prevent unauthorized access to, or use of, the Software, and (c) notify Exterro promptly of any such unauthorized access or use. Customer is responsible for using the Software within the permitted scope and only in accordance with the numbers, types and identifiers of Authorized Users, applications, servers, devices, capacity, and locations at or which Customer is permitted to use as set forth in the Order Form. 
   2. Customer Data Responsibilities: Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Subscription; (c) Customer's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services ("Customer Systems"); (d) the security and use of Customer's and its Authorized Users' access credentials; and (e) all access to and use of the Software and Documentation directly or indirectly by or through the Customer systems or its or its Authorized Users' access credentials, with or without Customer's knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards reasonably necessary to: (i) securely administer the distribution and use of access credentials and protect against any unauthorized access to or use of the Software and Documentation, including Aggregated Data, as defined below; and (ii) control the content and use of Customer Data, including the uploading or other provision of Customer Data for processing by the Software. For the avoidance of doubt, Customer Data does not include Aggregated Data or any other information reflecting the access or use of the Software or the Professional Services by or on behalf of Customer or any Authorized User.
   3. Customer Cooperation.  Customer shall provide Exterro with reasonable cooperation and assistance in connection with Exterro’s provision of its Software under any Order Form. Without limiting the foregoing, Customer shall respond promptly and accurately to all Exterro’s requests for approval, information, or direction and shall provide prompt access to all necessary and appropriate resources described in an Order Form or as may otherwise be required for Exterro to accomplish the work objectives under any Order Form or SOW. Customer shall be responsible for directing, participating, and cooperating with Exterro during the implementation of the Software. Exterro shall not be responsible for a default or delay in performance of its obligations under any Order Form or SOW to the extent such default or delay is attributable to the failure of Customer to fulfil its obligations under this Agreement.
   4. Governmental or Regulatory Inquiries. Customer shall promptly inform Exterro of any applicable inquiries, direction, or orders made by governmental or regulatory authorities to give reasonable time for Exterro to review or respond.
   5. Customer Protocols. When using the Software, Customer may develop, provide, and maintain Customer-specific standards or protocols for use in connection with the Software, such as risk assessment standards, benchmarking standards, or applicable best practices, policies, procedures, or protocols, which may be further identified on an applicable Order Form (“System Protocols”). Customer is solely responsible for determining whether the System Protocols applicable to any Software comply with any legal, tax, accounting, operational, regulatory, and other requirements. The Parties hereby acknowledge and agree that Exterro is not engaged in the practice of law and is not providing legal advice to Customer.
7. Proprietary Rights.
   1. Customer Data.  As between Customer and Exterro, Customer owns its Customer Data. All Customer Confidential Information, and all Personal Information supplied by, or Personal Information input by Customer or its Authorized Users is, and remains, the property of Customer. Customer acknowledges that Exterro has no obligation to screen any Customer Data.
   2. Right to Use Customer Data. For the Term of this Agreement, Customer hereby grants Exterro and any subcontractors a non-exclusive, non-transferable, royalty-free, worldwide right to use the electronic data specifically pertaining to Customer and/or its Authorized Users that is processed using the Software (collectively, “Customer Data”) strictly and exclusively for the limited purpose of providing the Subscription and any improvements thereto to Customer.
   3. Aggregated Data. Exterro solely and exclusively owns the aggregated, anonymized, and statistical data derived from the operation of the Software, including without limitation, the number of records in the Service, the number and types of transactions, configurations, and reports processed in the Service and the performance results for the Service (the “Aggregated Data”). Nothing herein is to be construed as prohibiting Exterro from utilizing the Aggregated Data solely for purposes of optimizing system performance, provided that Exterro’s use of the Aggregated Data will not reveal any actual Customer Data or the identity, whether directly or indirectly, of any individual or Customer. In no event will the Aggregated Data include any Personally Identifiable Information or Customer Confidential Information.
   4. Ownership of Software and Other Materials.  Customer acknowledges that Exterro is and will remain the exclusive owner of all right, title and interest, including all Intellectual Property, in and to (a) the Software, and (b) all translations, adaptations, developments, enhancements, improvements, Updates, customizations, and other modifications and derivative works of the Software, in whole or in part, whether or not developed for the Customer. No rights are granted to Customer hereunder other than as expressly set forth herein. To the extent any suggestions, ideas, enhancement requests, feedback, or recommendations are provided by or on behalf of Customer regarding the Licensed (the “Feedback”), Customer acknowledges the absolute ownership of same by Exterro and grants to Exterro a royalty-free, limited, worldwide, irrevocable, perpetual license to use all Feedback for any purpose.  All Feedback will be anonymized, de-identified and/or rendered in such a manner so as not to identify Customer or its Affiliates or contain any Customer Confidential Information. In Exterro providing any report template or other product configuration, the report template or product configuration is Exterro’s Intellectual Property Right, and the Customer Data is Customer’s Intellectual Property. Notwithstanding the preceding, Exterro grants the right for Customer to use reports previously downloaded after termination.  Exterro does not and is not to be deemed to transfer to Customer any Intellectual Property rights therein, whether as “work-for-hire” or otherwise, other than the right to Use the same in accordance with this Agreement as part of the Software.
8. Security.
   1. Security.  Exterro will use commercially reasonable security methodologies to protect Customer Data and will require use of such methodologies from its subcontractors. The specific methods used may vary from time to time to stay current with industry best practices. 
   2. Data Breach. In the event a Party becomes aware of any unauthorized and/or unlawful access, use, disclosure, destruction, or loss of Customer Data stored in Exterro Hosted Software used by Customer in accordance with the terms of this Agreement (a “Data Breach”), such Party will promptly notify the other and will cooperate with reasonable efforts to resolve the Data Breach. Each Party shall bear the costs of such remediation or mitigation to the extent the Data Breach was caused by it.
9. Confidential Information.
   1. Obligation as to Confidential Information.  Each party acknowledges that it may, during this Agreement, acquire information or knowledge of the other party that is Confidential Information. Each party during the term of this Agreement and for so long thereafter as such information remains confidential or proprietary to the disclosing party, shall treat all such information as confidential and use the same degree of care that each such Party uses to protect its own Confidential Information, but in no event less than a reasonable amount of care. Neither Party shall use Confidential Information of the disclosing party for purposes other than those necessary to directly further the purposes of this Agreement. Except for a receiving party’s representatives, neither Party shall disclose the disclosing party’s Confidential Information to unaffiliated third parties without prior written consent of the other Party.  This Section does not modify the terms of any license provision.
   2. Exceptions. Confidential Information of a disclosing party does not include any information that (i) was known to the receiving party prior to disclosure by the disclosing party, (ii) is publicly disclosed without restriction through no fault of the receiving party, or (iii) was independently developed by the receiving party or unaffiliated third party without use of the disclosing party’s Confidential Information. 
   3. Permitted Disclosure. Either party may disclose Confidential Information if and only to the extent it is required pursuant to applicable law, rule, or court order, provided it gives the other party prompt notice (provided the party is permitted by law to give notice) and cooperates in any attempt to obtain a protective order or other confidential treatment of such disclosure at the disclosing party’s cost.
   4. Proprietary Rights.  All Confidential Information, unless otherwise specified in writing, remains the property of the disclosing party except as stated in Section 7.4 (Ownership of Software and Other Materials).  No rights, including, but not limited to, Intellectual Property rights, in respect of a party's Confidential Information, are granted to the other party.
   5. Return of Confidential Information.  Upon written request by the disclosing party at any time, the receiving party shall: (a) promptly turn over to the disclosing party all Confidential Information of the disclosing party, all documents or Media containing the Confidential Information, and any and all copies or extracts thereof, that the receiving party possesses or controls; or (b) promptly destroy the Confidential Information, and any and all copies or extracts thereof that the receiving party possesses or controls, and provide the disclosing party with written certification of such destruction signed by an authorized representative of the receiving party.
   6. Equitable Relief. The receiving party acknowledges and agrees that due to the unique nature of the disclosing party’s Confidential Information, there may be no adequate remedy at law for any breach of its obligations. The receiving party further acknowledges that any such breach 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 seek appropriate equitable relief, including but not limited to injunction in addition to whatever remedies it may have at law. The receiving party shall notify the disclosing party in writing immediately upon the occurrence of any such unauthorized release or other breach.
10. Warranties and Disclaimers.
    1. Exterro Warranty. Exterro represents and warrants that (a) it has the full corporate right, power, and authority to enter into this Agreement and to perform the acts required of it under this Agreement, and (b) Exterro has taken commercially reasonable efforts to ensure the Software does not contain any Harmful Code. 
    2. Exterro Performance Warranty and Exclusive Remedy. Exterro warrants that during the Subscription, the Software will operate without a Defect that causes a material failure of Customer’s Production instances of the Software to perform in accordance with the Documentation. Customer’s exclusive remedy for breach of this warranty is for Exterro to correct or provide a work around for the Defect upon submission of a support ticket.  If the Defect continues to cause a material failure in Customer’s Production instance of the Software without correction or work-around thirty (30) days after written notice to Exterro of a warranty claim under this Section 10.2, then Customer may terminate the affected Subscription and Exterro shall refund to Customer any prepaid Subscription Fees covering the remainder of the Subscription for the affected Software after the date of termination.  This Section sets forth Customer’s exclusive rights and remedies and Exterro’s sole liability in connection with any Defect or other failure of the Software to perform in accordance with the Documentation or any other manner. Notwithstanding any other provision in this Agreement, Exterro shall have no obligation to support and shall have no liability or obligation due to unavailability, malfunction, or degradation of performance in the Software due to modifications of the Software by any person other than Exterro or a person acting at Exterro’s direction.
    3. Professional Services. Exterro warrants to Customer that all Professional Services provided under this Agreement will be performed by competent Personnel with appropriate experience in providing such Services.  Exterro ’s sole obligation and Customer’s sole and exclusive remedy for breach of the foregoing warranty shall be the re-performance of the defective Professional Services.
    4. Warranty Limitations. The warranties set forth in 10.1, 10.2, and 10.3 do not apply to and, to the full extent permitted by law, Exterro shall have no responsibility for breaches of warranty to the extent arising from: (a) Customer’s operator errors; (b) Customer hardware or operating system failures; (c) the modification or attempted modification of the Software by any person other than Exterro; (d) the combination or attempted combination of any Software with products or services not provided by Exterro (except as directed or authorized by Exterro ); (e) use of any portion of the Software in a manner not permitted or contemplated by this Agreement or the Documentation; (f) use of an earlier Version of some or all of the On-Premises Software or use of the On-Premises Software without all of the Updates installed in accordance with the terms and conditions of Sections 3 and 6 (Support and Customer Responsibilities); and (g) damage to the Software caused by Customer. The warranties in Section 10.2 also apply to Updates.
    5. Customer Warranties. Customer represents and warrants that (a) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it under this Agreement, (b) Customer has all rights and consents necessary to provide the Customer Data to Exterro and its Subcontractors, and to grant the license stated in Section 7.2 (Right to Use Customer Data), (c) Customer has taken commercially reasonable efforts to ensure Customer Data does not contain any Harmful Code, (d) the Customer Data does not violate the terms of this Agreement. 
    6. DISCLAIMER.  EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT, NEITHER PARTY PROVIDES ANY OTHER WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.    EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  EXTERRO DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE OR THAT THE SOFTWARE WILL ASSURE COMPLIANCE WITH LEGAL REQUIREMENTS.  Without limiting the foregoing, Exterro and its affiliates, distributors, agents, subcontractors and suppliers do not warrant, and expressly disclaim any representation or warranty, that the Software, Content or PROFESSIONAL Services provided by or on behalf of Exterro will satisfy Customer’s requirements. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST.  CUSTOMER MAY HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
11. Indemnification.
    1. Exterro’s Obligation. Exterro will defend Customer and its respective officers, directors, and employees from a third party’ claim that arises out of or relates to Exterro’s material breach of its: (i) confidentiality obligations in Section 9, or (ii) a violation of applicable law in connection with this Agreement (in each case, a “Claim”) and pay  any court-ordered award of damages or settlement amount, and reasonable attorney fees, to the extent caused by such Claim. 
    2. Intellectual Property.  Exterro will defend or settle, at its option and expense, any action, suit or proceeding brought against Customer by a third party alleging that the Exterro Software infringes such party’s patent, copyright, or trademark (“IP Claim”) and pay any court-ordered award of damages or settlement amount, and reasonable attorney fees, to the extent caused by such IP Claim. If any portion of the Software becomes the subject of a Claim, Exterro may: (a) contest the IP Claim; (b) obtain permission from the claimant for Customer’s continued use of the Software; (c) replace or modify the Software to avoid infringement, if such replacement or modification has substantially the same capabilities as the Software; or, if the foregoing (a), (b), and (c) are not available on commercially reasonable terms in Exterro’s judgment, then (d) terminate Customer’s use of the affected Software upon forty-five (45) days’ written notice and pay to Customer a refund of any prepaid Subscription Fees covering the remaining portion of the applicable Subscription for the affected Software after the date of termination.
    3. Exceptions.  Notwithstanding Section 11.2 above, Exterro shall have no indemnification obligation or liability for any IP Claim arising in whole or in part from: (i) any use of the Software which exceeds the authorized use permitted under this Agreement; (ii) Customer’s Data infringe upon or misappropriate the Intellectual Property of such third party; (iii) use of the Software by Customer in violation of applicable law; (iv) use of the affected Software after termination in accordance with clause (d) of Section 11.2; (v) modifications to the Software by any person other than Exterro or a person acting at Exterro’s direction; (vi) use of the Software in combination with any hardware, software, application or service made or provided other than by Exterro; (vii) Customer continues the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (viii) where Customer has failed to install an Update as required under Section 3.1.2 (On-Premises Software Support). 
    4. Customer’s Obligation.  Customer shall indemnify, defend and hold harmless Exterro, each Exterro Affiliate, and their respective officers, directors, employees, agents, successors and assigns against a third party’s claim that arises out of or relates to Customer’s material breach of its: (i) confidentiality obligations in Section 9, (ii) a violation of applicable law, or (iii) Customer Data, including any processing of Customer Data by or on behalf of Exterro in accordance with this Agreement (in each case, a “Claim”).  Customer will further indemnify and hold harmless Exterro against any court-ordered award of damages or settlement amount, and reasonable attorney fees to the extent caused by such Claim.
    5. Process.  The foregoing indemnity obligations are conditioned on the indemnified Party notifying the indemnifying Party promptly in writing of any actual or threatened Claim or IP Claim, and fully cooperating with the indemnifying Party in the defense or settlement of the Claim or IP Claim. SECTIONS 11.2, 11.3 and 11.4 STATE EACH PARTY’S ENTIRE LIABILITY, AND THE OTHER PARTY’S EXCLUSIVE REMEDY, FOR THIRD PARTY INFRINGEMENT CLAIMS AND ACTIONS.
12. Limitation of Liability. 
    1. EACH PARTY’S LIABILITY TO THE OTHER UNDER THIS AGREEMENT IS LIMITED AS FOLLOWS: 
       1. DISCLAIMER OF DAMAGES. NEITHER PARTY SHALL BE LIABLE FOR ANY OF THE OTHER PARTY’S INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, RELIANCE, OR SPECIAL DAMAGES (INCLUDING BUT NOT LIMITED TO ANY DAMAGE TO BUSINESS REPUTATION, LOST PROFITS OR REVENUE, LOST OR INACCURATE DATA OR LOST SAVINGS).
       2. GENERAL CAP. EXCEPT FOR EXTERRO’S CLAIMS FOR UNPAID FEES AND AS OTHERWISE PROVIDED BELOW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY AMOUNTS IN EXCESS OF ONE MILLION DOLLARS (THE “GENERAL CAP”).
       3. SUPER CAP CLAIMS. THE FOREGOING LIMITATIONS OF LIABILITY WILL NOT APPLY TO: (I) A PARTY’S BREACH OF ITS OBLIGATIONS IN SECTION 8 (SECURITY), SECTION 9 (CONFIDENTIALITY); OR (II) EXTERRO’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11.2 (INTELLECTUAL PROPERTY) (COLLECTIVELY, “SUPER CAP CLAIMS”); PROVIDED THAT A PARTY’S TOTAL AGGREGATE LIABILITY FOR SUPER CAP CLAIMS SHALL NOT EXCEED THREE MILLION DOLLARS. 
       4. APPLICATION. OTHER THAN AS STATED ABOVE, THESE LIMITS APPLY REGARDLESS OF THE FORM OF CLAIM (CONTRACT, TORT OR OTHERWISE) AND EVEN IF THIS SECTION IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.  SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR OTHER DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY.  IN SUCH EVENT, LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW. 
13. Termination. 
    1. Termination for Cause by Exterro.  In the event Customer (i) materially breaches any terms or conditions of this Agreement and failed to cure the breach following at least 30-days written notice; (ii) becomes insolvent; (iii) makes an assignment for the benefit of creditors; (iv) files or has filed against it a petition in bankruptcy or seeking reorganization; (v) has a receiver appointed; (vi) institutes any proceedings for liquidation or winding up or has such proceedings instituted against it; then Exterro may, in addition to other rights and remedies it may have available, terminate this Agreement immediately by written notice.
    2. Consequences of Termination by Exterro for Cause.  Upon the termination or expiration of this Agreement, Customer shall immediately cease using the Software, terminate access to all Software and destroy all Documentation and communications containing Exterro Confidential Information. Customer shall notify Exterro when it destroys or deletes Software, Documentation and Confidential Information and shall send written confirmation of such action to Exterro within ten (10) days thereof. Customer is not entitled to a refund of any Subscription Fees or fees for Software or support paid to Exterro.
    3. Termination for Cause by Customer.  In the event Exterro (i) materially breaches any terms or conditions of this Agreement and failed to cure the breach following at least 30-days written notice; (ii) becomes insolvent; (iii) makes an assignment for the benefit of creditors; (iv) files or has filed against it a petition in bankruptcy or seeking reorganization; (v) has a receiver appointed; (vi) institutes any proceedings for liquidation or winding up or has such proceedings instituted against it; then Customer may, terminate this Agreement for Cause immediately by written notice. 
    4. Consequences of Termination by Customer for Cause. Upon any termination for cause by Customer, Exterro shall advise Customer of the extent to which their Subscription or performance of any Professional Services were completed through such date.  Customer shall pay for all additional Professional Services performed and expenses incurred with respect to 
    5. any such additional Professional Services through the date of termination. Exterro shall refund to Customer any pre-paid unused portion of Subscription Fees post the receipt of the written uncured Notice of Default.  Customer shall destroy all Exterro Software, Documentation, and communications and send written confirmation of such action to Exterro within ten (10) days thereof.
    6. Effect of Expiration or Termination.  Upon expiration or termination for any reason, (a) Customer shall immediately cease all access to the affected Software, and if applicable shall uninstall any Exterro software that was installed on its systems in connection with the Services, and (b) upon Customer’s written request (which Exterro must receive within 30 days after termination) Exterro shall provide Customer with an electronic copy of the Customer Data (defined below) in a standard commercial format. Exterro is not responsible for maintaining any Customer Data more than 45 days following termination or expiration. 
    7. Survival.  Upon any termination of an Order or this Agreement, only the following terms survive: Sections 1 (Definitions), 2.4 (Restrictions on Use), 5.4 (Payment Terms), 7 (Proprietary Rights), 9 (Confidential Information), 10 (Warranty and Disclaimers), 11 (Indemnification), 12 (Limitations of Liability), 13 (Termination), and 14 (Miscellaneous). 
14. Miscellaneous.
    1. Governing Law and Consent to Jurisdiction. This Agreement is governed by and construed in accordance with the laws of the State of Oregon and the federal laws of the United States of America. Customer hereby consents and submits exclusively to the jurisdiction and forum of the state and federal courts in the State of Oregon in all questions and controversies arising out of this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply or govern this Agreement or the Software licensed pursuant to this Agreement. 
    2. Export Controls. Customer acknowledges that the Software is subject to export controls under United States laws and regulations, including the Export Administration Regulations, 15 C.F.R. Parts 730-774, and may be subject to other applicable laws and regulations in other jurisdictions relating to export, re-export, import, transfer or other disposition of software and other technology (collectively, “Export Control Laws”). From and after Exterro ’s Delivery of the Software to Customer, Customer shall comply with all applicable Export Control Laws applicable to the Software. 
    3. Compliance with Applicable Laws. Each Party shall perform any and all activities it undertakes in connection with this Agreement in compliance with all applicable laws and regulations arising out of the subject matter of this Agreement.
    4. No Third-Party Beneficiaries.  Except for the indemnified parties stated in Section 11 (Indemnification): a) no third party is intended to be or is a third-party beneficiary of any provision under this Agreement; and Exterro and Customer, and each parties’ Affiliates, as applicable, are the only parties entitled to enforce the rights set out in this Agreement.
    5. Assignment.  Neither Party shall assign its rights or obligations, whether by operation of law or otherwise, without the prior written consent of the other Party, which shall not be unreasonably withheld, conditioned nor delayed. Notwithstanding the foregoing, either Party may, upon notice and without the other Party’s consent: (i) in connection with a merger, reorganization or sale of all or substantially all of the assets or equity of such Party, assign this Agreement in its entirety to such Party’s successor; and (ii) assign this Agreement in its entirety to any company, partnership or other legal entity which from time to time directly or indirectly Controls, is Controlled by or is under the common Control with such Party, where “Control” means the legal power to direct or cause the direction of the general management of the company, partnership or other legal entity. Any attempted or purported assignment in violation of this Section will be null and void. Subject to the foregoing, this Agreement binds and inures to the benefit of the Parties, their respective successors and permitted assigns.
    6. Force Majeure. No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond the affected Party’s reasonable control, including without limitation: pandemics or other national health crises, strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), trespassing, sabotage, theft or other criminal acts, failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, explosions, collapse of building structures, fires, floods, storms, earthquakes, epidemics or similar events, natural disasters or extreme adverse weather conditions (each a “Force Majeure Event”). The Party suffering a Force Majeure Event shall use reasonable efforts to mitigate against the effects of such Force Majeure Event.
    7. U.S. Government Rights (if applicable).  All Exterro software is commercial computer software, and all services are commercial items. “Commercial computer software” has the meaning set forth in Federal Acquisition Regulation (“FAR”) 2.101 for civilian agency purchases and the Department of Defense (“DOD”) FAR Supplement (“DFARS”) 252.227-7014(a)(1) for defense agency purchases. If the software is licensed or the services are acquired by or on behalf of a civilian agency, Exterro provides the commercial computer software and/or commercial computer software documentation and other technical data subject to the terms of this Agreement as required in FAR 12.212 (Computer Software) and FAR 12.211 (Technical Data) and their successors. If the software is licensed or the services are acquired by or on behalf of any agency within the DOD, Exterro provides the commercial computer software and/or commercial computer software documentation and other technical data subject to the terms of this Agreement as specified in DFARS 227.7202-3 and its successors. Only if this is a DOD prime contract or DOD subcontract, the Government acquires additional rights in technical data as set forth in DFARS 252.227-7015. This U.S. Government Rights clause is in lieu of, and supersedes, any other FAR, DFARS or other clause or provision that addresses Government rights in computer software or technical data. 
    8. Subcontracting. “Subcontractor” means a third-party that provides a material component of the Services. Customer hereby consents to Exterro engaging (and/or dismissing) Subcontractors provided that (i) Exterro shall require by written agreement of its Subcontractor’s compliance with the applicable laws and will ensure it has the contractual terms in place with such Subcontractor that are required by the applicable laws; and, (ii) Exterro shall remain responsible for the Subcontractor’s performance under these terms and the Agreement. 
    9. Amendment.  Any modification of this Agreement, an Order Form, the Software Guide, a SOW, or a Service Description must be in writing, referencing this Agreement, and signed by authorized representatives of both Parties.
    10. Insurance.  During any period in which it is performing services for Customer, Exterro will maintain (and will assure that its contractors and agents agree to maintain) the following policies of insurance during the term of this Agreement: (a) workers’ compensation with such coverage amounts at least equal to that legally required in jurisdictions in which such services are being performed, (b) general liability insurance in commercially reasonable amounts covering liability for bodily injury, death and property damage, (c) general commercial liability insurance, and (d) cyber insurance in commercially reasonable amounts.  Upon written request, Exterro shall promptly provide confirmation of such insurance coverage.
    11. Independent Contractor.  Each party’s relationship to the other is that of an independent contractor. Nothing in this Agreement, and no course of dealing between the parties, is to be construed to create a partnership, joint venture or employment or agency relationship between the parties or between Customer and any Exterro employee, agent or contractor.  Neither party has any authority to bind, incur liability for or otherwise act on behalf of the other party, and neither party will represent or imply that it has any such authority. 
    12. Injunctive Relief. A violation of Sections 2 (License Grant), 7 (Proprietary Rights), or 9 (Confidential Information), including any infringement or misappropriation of any Software or Intellectual Property rights will cause severe and irreparable injury to Exterro and threaten its core business interest with no adequate remedy at law.  Accordingly, in the event of any actual or threatened violation or breach of those Sections, the breaching party agrees that the non-breaching party shall be entitled to seek immediate injunctive relief, without the need to post bond or surety, to prevent or stop such violation or breach, as well as other equitable and legal remedies available to such party.
    13. Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a "Notice") must be in writing and addressed to the other Party at its address set forth below (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section. Notice to Exterro: General Counsel, Exterro, Inc., 2175 NW Raleigh St., Suite 110, Portland, OR 97210, with a copy to: [email protected]. Notice to Customer will be sent to the address listed on an ordering document.
    14. Use of Customer Name.  Customer agrees to the use of Customer's name by Exterro for marketing purposes, provided Exterro complies with Customer's trademark usage and other quality control provisions.
    15. Headings, Construction, and Advice of Counsel. Section headings in this Agreement are for convenience only and will not in any way affect the meaning or interpretation of each section. The word “including” is not intended to be limiting. No rule of strict construction is to be used when interpreting this Agreement. The Parties acknowledge that they have been advised by counsel of their own choosing, played equal parts in negotiating this Agreement and that its terms will be interpreted without any bias against one Party as drafter.
    16. Entire Agreement.  This Agreement (including the Order Form) and any other referenced documents reflect the entire agreement between the parties concerning the Software, Professional Services, and Subscription, and supersede any prior or contemporaneous agreements, communications, or understandings (whether written or oral).  Both Parties must agree in writing to any amendments or modifications. All terms, conditions, or provisions which may appear as pre-printed language or otherwise be inserted within any purchase order shall be of no force and effect notwithstanding the acceptance of such purchase order after the date of this Agreement.  If any provision of this Agreement is declared invalid or unenforceable, then the court shall replace the invalid or unenforceable provision with a valid and enforceable provision that most accurately reflects the Parties’ intentions, and the remaining provisions of this Agreement shall remain in full force and effect