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Terms and Conditions

ADS Subterra SOFTWARE LICENSE, SUPPORT SERVICE AND PROFESSIONAL
SERVICES TERMS AND CONDITIONS

These Terms and Conditions, together with any Order or Statement of Work agreed to
by Company and Customer (collectively referred to as the “Agreement”) will solely
govern all Products and Services, as defined below, provided by Company to Customer.

1. For purposes of this Agreement:

“Company” means ADS, LLC or its affiliates or subsidiaries.

“Confidential Information” means all information or material which (i) gives a party
some competitive business advantage, gives a party the opportunity of obtaining some
competitive business advantage, or the disclosure of which could be detrimental to the
interests of a party; and (ii) which is either (A) marked “Confidential,” “Restricted,” or
“Proprietary Information” or other similar marking, (B) known by the parties to be
considered confidential and proprietary or (C) from all the relevant circumstances
should reasonably be assumed to be confidential and proprietary. The Documentation
and Products are deemed the Confidential Information of Company.

“Customer” means the person or entity listed on one or more ordering documents or
authorized user of the Products or recipient of Services.

“Documentation” means Company’s then current generally available documentation,
specifications, user manuals, etc. for the Products and Services.

“Products” means any hardware, software, Documentation, Cloud Services,
accessories, cabling, material, supplies, parts, and other goods that Company sells or
resells to Customer.

“Product Support” means any maintenance and support of any Products provided by
Company.

“Purchase Order” means a purchase order or other similar document or
communication from Customer to Company delivered in connection with a sales quote
or an SOW.

“Statement of Work” or “SOW” means a statement of work that defines the specifics of
the Services to be performed by Company under this Agreement.

“Services” means any professional services, including implementation and installation
services agreed upon by the parties and set forth in a SOW or any Product Support
purchased pursuant to an Order.

2. Customer may place an order for Products or Services (each, an “Order”) by: (i) with
respect to Products, submitting the Order to Company on Customer’s standard
Purchase Order form, an alternate order form approved by Company, or electronic
means acceptable to Company; or (ii) with respect to Services, executing and delivering
to Company an SOW. Customer’s Order shall be deemed to incorporate these terms
and conditions with or without reference in the Order to this Agreement. Orders for
Products shall identify the Products, unit quantities, part numbers, descriptions,
applicable prices and requested delivery dates. All Orders are subject to acceptance by
Company, which acceptance may be evidenced by: (a) with respect to Products, either
a written confirmation of Company acceptance sent by mail, facsimile, or other
electronic means, or by shipment of the Products; or (b) with respect to Services, by the
execution and delivery of the SOW by Company. Except as provided in Section 11.2.2
below, no Orders for Products may be terminated, cancelled, or rescheduled without
Company’s consent. If Customer asks Company to cancel or reschedule a Product
Order less than ten (10) days before the original scheduled shipping date, and
Company consents to such cancellation or reschedule, then such Order shall be subject
to a charge of fifteen percent (15%) of the total invoice amount relating to the affected
Products. Company reserves the right to allocate sales of Products and Services among
its customers in its sole discretion.

3. Delivery and Title. All shipments by Company are FCA, Company’s location
(Incoterms 2020), and all transportation charges (if applicable) shall be paid by
Customer in addition to the price of the Products. Subject to Company’s right of
stoppage in transit, delivery of the Products to the carrier shall constitute delivery to
Customer and title and risk of loss shall thereupon pass to Customer. Selection of the
carrier and delivery route shall be made by Customer. Company shall use commercially
reasonable efforts to initiate shipment and schedule delivery as close as possible to
Customer’s requested delivery dates. Customer acknowledges that delivery dates
provided by Company are estimates only and that Company is not liable for failure to
deliver on such dates, provided that Company will use commercially reasonable efforts
to inform Customer of delivery status. Company reserves the right to make deliveries in
installments. Delivery of a quantity which varies from the quantity specified in any Order
shall not relieve Customer of the obligation to accept delivery and pay for the Products
delivered. Delay in delivery of one installment shall not entitle Customer to cancel other
installments.

Cloud Services. Company may provide access to certain Web-based or other online
Products (the “Cloud Services”). Unless provided otherwise in any terms and
conditions accompanying the Cloud Services, Company grants Customer a non-
exclusive, non-transferable license to use the Cloud Services solely in connection with
its use of the associated Products. Company will use commercially reasonable efforts to
make the Cloud Services available for Customer’s access and use, as contemplated
under this Agreement, an average of at least ninety-nine (99%) of the time during each
month during the Term (the “Availability Requirement”), excluding any period of
Permitted Unavailability. “Permitted Unavailability” includes Planned Outages (as
defined below) and any unavailability due to causes beyond Company’s reasonable
control, including, without limitation: any software, hardware, or telecommunication
failures; interruption or failure of telecommunication or digital transmission links; Internet
slow-downs or failures; failures or default of third party software, vendors, or products;
and unavailability resulting from Customer’s actions or inactions or a failure of
Customer’s communications link or systems. “Planned Outages” means the period of
time during which Company conducts systems maintenance and any instances
requiring emergency maintenance. Company will use reasonable efforts to schedule
Planned Outages during non-peak hours. In the event of any failure to achieve the
Availability Requirement, Company will use commercially reasonable efforts to correct
the interruption as promptly as practicable. In the event Company fails to achieve the
Availability requirement, Company will use commercially reasonable efforts to correct
the interruption as promptly as practicable. In the event Company fails to achieve the
Availability requirement in two (2) consecutive months during the term of this
Agreement, Client may terminate this Agreement with regard to Product constituting the
Cloud Services within thirty (30) days of the end of the second consecutive month,
without further obligation and receive a prorated refund of any pre-paid, unused
recurring fees. The refund will constitute Customer’s sole and exclusive remedy and
Company’s sole and exclusive liability for failure to achieve the Availability requirement.

Connectivity. Customer is solely responsible for all telecommunication or Internet
connections and associated fees required to access the Cloud Services, as well as all
hardware and software on the Customer site.

Data Privacy. Customer grants Company a non-exclusive, world-wide, royalty-free
license to use the data and other information input by Customer into the Cloud Services
(the “Customer Data”) for purposes of performing this Agreement. Customer will be
responsible for obtaining all rights, permissions, and authorizations to provide the
Customer Data to Company for use as contemplated under this Agreement. Except for
the limited license granted in this Section, nothing contained in this Agreement will be
construed as granting Company any right, title, or interest in the Customer Data.
Customer Data shall be deemed Customer Confidential Information.

Customer acknowledges that, in rendering the Services, Company may process
Customer Data that qualifies as personal data under applicable laws, including the EU
GDPR (“Personal Data”). Customer is responsible for ensuring the lawfulness of
collecting, processing and disclosing such Personal Data. Company will process
Personal Data solely for the purpose of providing the Services, complying with its legal
obligations, and as further described in Company’s Privacy Policy. The respective
obligations of both parties are set forth in a separate Data Processing Agreement.

Information Security. Consistent with any law or regulation applicable to Company and
its performance of this Agreement and consistent with Company’s then current practices
and procedures, Company will maintain and enforce administrative, technical, and
physical safeguards to reasonably protect the confidentiality, availability, and integrity of
Customer’s Confidential Information and the Customer Data. Company will promptly
report to Customer any compromise of security that it becomes aware of with regard to
Customer Data.

Disaster Recovery; Business Continuity. Company has developed and implemented
a disaster recover/business continuity plan (the “Plan”) for the Cloud Services. On
request, Company will furnish Customer a copy of the Plan, which shall be deemed
Company confidential Information. Consistent with its then current practices, Company
will periodically test and re-assess the Plan and, on request, provide Customer with
copies of any updated versions of the Plan.

Use of Products in Certain Applications. Products sold by Company are not
designed, intended or authorized for use in life support, life sustaining, nuclear, or other
applications in which the failure of such Products could reasonably be expected to result
in personal injury, loss of life or catastrophic property damage. If Customer uses or sells
the Products for use in any such applications: (i) Customer acknowledges that such use
or sale is at Customer’s sole risk; (ii) Customer agrees that Company and the
manufacturer(s) of the Products are not liable, in whole or in part, for any claim or
damage arising from such use; and (iii) Customer will indemnify, defend and hold
Company and the manufacturer(s) of the Products harmless from and against any and
all claims, damages, fines, sanctions, losses, costs, expenses and liabilities arising out
of or in connection with such use or sale.

Export/Import Control Compliance. The sale, resale or other disposition of Products
and any related technology or documentation may be subject to the export control laws,
regulations and orders of the United States and may be subject to the export and/or
import control laws and regulations of other countries. Customer is solely responsible
for complying with all such laws, regulations and orders and acknowledges that it shall
not directly or indirectly export or import any Products to any country to which such
export or transmission is restricted or prohibited. Customer understands and
acknowledges its responsibility to obtain any license to export, re-export or import as
may be required.

Restrictions. Customer may not: (i) reverse engineer, disassemble, decompile or
otherwise attempt to reveal the trade secrets or know how underlying the Products,
except to the extent expressly permitted under applicable law; (ii) use Company’s
intellectual property and Confidential Information to develop a product that is similar to
the Products; (iii) use any Company Confidential Information to contest the validity of
any Company intellectual property; (iv) remove or destroy any copyright notices, other
proprietary markings or confidentiality legends placed on or made available through the
Products; or (v) use the Products in any manner or for any purpose inconsistent with the
terms of this Agreement or the Documentation. Software Products shall only be used for
the licensed number of nodes, networks, or hosts for which Customer has paid the
applicable fees.

Intellectual Property. This is not a work made-for-hire agreement (as that term is
defined in Section 101 of Title 17 of the United States Code). Company and its licensors
and manufacturers own all right, title, and interest, including intellectual property rights,
in the Products and Services and all enhancements, modifications, and updates thereto.
Except for express licenses granted in this Agreement, Company is not granting or
assigning to Customer any right, title, or interest, express or implied, in or to Company’s
intellectual property. Company reserves all rights in such property.

Feedback. Customer may provide Company with suggestions, comments or other
feedback (collectively, “Feedback”) with respect to the Products and Services.
Feedback is voluntary. Company is not obligated to hold it in confidence. Company may
use Feedback for any purpose without obligation of any kind. To the extent a license is
required under any Customer intellectual property rights to make use of the Feedback,
Customer grants Company an irrevocable, non-exclusive, perpetual, royalty-free license
to use the Feedback in connection with Company’s business, products, and services,
including the enhancement of the Products and Services.

Limited Software License. Unless provided otherwise in specific Company end user
terms and conditions accompanying a Product, Company grants Customer a limited,
non-transferable, non-exclusive license to use software Products solely for Customer’s
internal business purposes and solely in connection with any designated associated
hardware Products. The term of the license shall be for the period set forth in the sales
quote and associated Order. With regard to any firmware (software embedded in and
provided with a hardware Product; as opposed to stand-alone software), Company
grants Customer a limited, non-transferable, non-exclusive license to use the firmware
solely in connection with Customer’s use of the related hardware Product. Customer
may not distribute the firmware in any form, or to use the firmware except as it is
embedded in the non-volatile memory component(s) of the hardware Product. All
software Products, including embedded software, are licensed, not sold. Apart from the
foregoing limited licenses, Customer is not being granted any right, title, or interest in or
to the software Products. All such rights are expressly reserved by Company.

Third Party Products. Certain Products may be manufactured by third parties and
resold to Customer (the “Third Party Items”). Third Party Items may be subject to
third party terms and conditions, including end user license agreements, accompanying
the Products at the time of delivery (the “Third Party Terms”). Customer’s use of the
Third Party Items will indicate its agreement to be bound by the Third Party Terms.
COMPANY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR
IMPLIED WITH REGARD TO ANY THIRD PARTY ITEMS. COMPANY EXPRESSLY
DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE/NON-
INFRINGEMENT, QUALITY OF INFORMATION, QUIET ENJOYMENT, AND FITNESS
FOR A PARTICULAR PURPOSE WITH REGARD TO THE THIRD PARTY ITEMS.
CUSTOMER SHOULD CONSULT THE RESPECTIVE VENDORS/MANUFACTURERS
OF THE THIRD PARTY ITEMS FOR WARRANTY AND PERFORMANCE
INFORMATION, INCLUDING ANY THIRD PARTY TERMS.

Aggregated Data. Customer grants Company a non-exclusive, perpetual, irrevocable,
fully-paid-up, royalty free license to use data collected, transmitted, or derived from use
of the Products and Services (the “Aggregated Data”) for Company’s business
purposes, including the improvement of its products and services, training of its Artificial
Intelligence models, and provision of products and services to Company’s other
customers. In connection with these uses, the Aggregated Data will be combined with
similar data from other customers and not identifiable to Customer. The Aggregated
Data will not be considered Customer Confidential Information. “Artificial Intelligence”
means a machine-based system that can, for a given set of human-defined objectives,
make predictions, recommendations or decisions influencing real or virtual
environments.

4. Product Support.

In General. Company will provide Customer with Product Support as outlined in
the Company’s Documentation provided at the time of quotation.

Exclusions. Notwithstanding the foregoing, Company will have no obligation to
support: (a) services, hardware, or software provided by anyone other than Company;
or (b) Product issues caused by Customer’s negligence, abuse or misapplication,
Customer’s use of Products other than as specified in the Documentation, or by other
factors beyond the control of Company.

Customer Support Obligations. Customer has the following obligations: (i)
Customer will provide Company with reasonable remote access to its systems for
purposes of rendering support; and (ii) Customer will ensure the appropriate Customer
personnel have been trained in the operation, support, and management of the
Products.

5. The following provisions relate to Services (other than Product Support, which is
governed by Section 4):

SOWs. SOWs will include the following: (i) a description of the Services and the
Deliverables to be provided by Company; (ii) the timeframe for the Services and
compensation to be paid to Company; (iii) any additional terms and conditions for the
Services; and (iv) each party’s responsibilities. Each SOW must be signed by duly
authorized representatives of both parties to be effective. Unless otherwise provided in
an SOW, Company will be compensated for Services on an hourly basis in accordance
with Company’s then current time and materials rates. Fees related to certain Services
in an SOW may be variable or may be adjusted if certain Services assumptions,
including project timeframes or scope of Services, increase, change or are incorrect.
Notwithstanding the foregoing, any changes to an SOW will be made in a writing signed
by duly authorized representatives of both parties. Each SOW will be attached to,
incorporated into, and governed by this Agreement by reference. Company will only be
responsible for performing those Services expressly identified in an SOW. Company will
use reasonable efforts to complete the Services within the times, if any, set forth in the
SOW.

Customer Obligations. In connection with the Services provided under each
SOW, Customer will, at all times and diligently and in good faith, comply with
Company’s reasonable requests to furnish Company or perform, at Customer’s
expense: (i) all technical matter, data, information and operating supplies, together with
knowledgeable personnel, as reasonably determined by Company to be necessary for
the performance of the SOW; (ii) access to Customer facilities, systems, and personnel;
and (iii) any other specific obligations of the Customer set identified in the SOW.
Company’s ability to perform the Services is contingent on the foregoing obligations and
any other assumptions provided in the SOW.

6. Payment Terms.

Prices. Prices will be specified by Company and will be applicable for the period
specified in the Company sales quote or the SOW (as applicable). If no period is
specified, prices will be applicable for thirty (30) days. Notwithstanding the foregoing,
prices will be subject to increase in the event of an increase in Company’s costs or
other circumstances beyond Company’s reasonable control. Prices are exclusive of
taxes, including sales, use, excise, value added and similar taxes or charges imposed
by any government authority; domestic and international shipping charges. Customer is
responsible for payment of the foregoing (with the exception of any Company income or
employee taxes) and such charges will be paid by Customer to Company in addition to
the price of the Products and Services.

Due Date; Late Payments. Amounts due for each Product may be invoiced by
Company upon delivery of the Product to the carrier at the point of origin; as such, an
order for multiple Products may result in multiple invoices. Amounts due for Services
may be invoiced by Company monthly or as otherwise expressly provided in the SOW.
Product Support services are invoiced on an annual basis in advance. Customer agrees
to pay the net amount of each invoice without offset or deduction within thirty (30) days
after the date of Company’s invoice (unless otherwise noted on the invoice). If any
amount is not paid upon the due date, Company shall be entitled to receive the amount
due plus interest thereon at the rate of 1.5% per month (or such lower rate as shall be
the highest permissible contract rate under applicable law) on all amounts that are not
paid on or before the date due. Customer shall also pay all of Company’s reasonable
costs of collection, including but not limited to reasonable attorney's fees.

7. Confidential Information. During the course of this Agreement, each party may
disclose to the other certain Confidential Information to the other party. Notwithstanding
the foregoing, Confidential Information does not include information that: (a) is or
becomes publicly available through no breach by the receiving party of this Agreement;
(b) was previously known to the receiving party prior to the date of disclosure, as
evidenced by contemporaneous written records; (c) was acquired from a third party
without any breach of any obligation of confidentiality; (d) was independently developed
by a party hereto without reference to Confidential Information of the other party; or (e)
is required to be disclosed pursuant to a subpoena or other similar order of any court or
government agency, provided, however, that the party receiving such subpoena or order
shall promptly inform the other party in writing and provide a copy thereof (unless notice
is precluded by the applicable process), and shall only disclose that Confidential
Information necessary to comply with such subpoena or order.

Protection of Confidential Information. Except as expressly provided in this
Agreement, the receiving party will not use or disclose any Confidential Information of
the disclosing party without the disclosing party's prior written consent, except
disclosure to and subsequent uses by the receiving party's employees or consultants on
a need-to-know basis, provided that such employees or consultants have executed
written agreements restricting use or disclosure of such Confidential Information that are
at least as restrictive as the receiving party's obligations under this Section 7. Subject to
the foregoing nondisclosure and non-use obligations, the receiving party agrees to use
at least the same care and precaution in protecting such Confidential Information as the
receiving party uses to protect the receiving party's own Confidential Information and
trade secrets, and in no event less than reasonable care. Each party acknowledges that
due to the unique nature of the other party's Confidential Information, the disclosing
party will not have an adequate remedy in money or damages in the event of any
unauthorized use or disclosure of its Confidential Information. In addition to any other
remedies that may be available in law, in equity or otherwise, the disclosing party shall
be entitled to seek injunctive relief to prevent such unauthorized use or disclosure.

8. Warranties and Disclaimers.

Product Warranties. Unless expressly provided otherwise in a Product warranty in
terms and conditions accompanying a Product, all Products shall materially conform to
their then current Documentation for a period of thirty (30) days from the date of initial
delivery. Customer must notify Company of any breach of this warranty within the
foregoing thirty (30) day period. Customer’s sole and exclusive remedy, and Company’s
sole and exclusive liability, for a breach of the foregoing warranty will be for Company, in
its sole discretion, to repair or replacement of the relevant Product (subject to the
provisions of Section 2 for RMAs) or terminate the relevant Order and issue a refund for
the price paid for the affected Product. Company shall not be responsible for any breach
of the foregoing warranty resulting from Customer’s abuse or misuse of the Product or
failure to use the Product as described in this Agreement, including failure to use the
Product in accordance with its operational requirements.

Service Warranties. Company warrants that (i) Company shall provide the Services
in a professional, workmanlike manner consistent with this Agreement, and (ii) for thirty
(30) days after date of delivery, the Services will materially conform to their descriptions
on the applicable SOW. Customer must notify Company of any breach of this warranty
within thirty (30) days of delivery. Customer’s sole and exclusive remedy, and
Company’s sole and exclusive liability, for a breach of the foregoing warranty will be for
Company, in its sole discretion, to use reasonable efforts to reperform the Services or
terminate the relevant SOW and issue a refund for the portion of price paid for the non-
conforming Services.

Disclaimers. EXCEPT FOR THE LIMITED WARRANTIES IN SECTIONS 1 AND 8.2
OR ANY EXPRESS WARRANTIES PROVIDED IN TERMS AND CONDITIONS
ACCOMPANYING A PRODUCT, THE PRODUCTS ARE PROVIDED “AS IS,” WITH ALL
FAULTS, AND WITHOUT WARRANTIES OF ANY KIND. EXCEPT FOR THE LIMITED
WARRANTIES IN SECTIONS 8.1 AND 8.2 OR ANY EXPRESS WARRANTIES
PROVIDED IN TERMS AND CONDITIONS ACCOMPANYING A PRODUCT, COMPANY
EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, TITLE/NON-
INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO
THE THIRD PARTY ITEMS. CUSTOMER SHOULD CONSULT THE RESPECTIVE
VENDORS/MANUFACTURERS OF THE THIRD PARTY ITEMS FOR WARRANTY AND
PERFORMANCE INFORMATION, INCLUDING ANY THIRD PARTY TERMS.

THE PRODUCTS MAY BE USED TO ACCESS AND TRANSFER INFORMATION
OVER THE INTERNET. CUSTOMER ACKNOWLEDGES AND AGREES THAT
COMPANY AND ITS VENDORS AND LICENSORS DO NOT OPERATE OR CONTROL
THE INTERNET AND THAT: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER
UNDESIRABLE DATA OR SOFTWARE; OR (II) UNAUTHORIZED USERS (E.G.,
HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE CUSTOMER
DATA, WEB-SITES, COMPUTERS, OR NETWORKS. COMPANY WILL NOT BE
RESPONSIBLE FOR THOSE ACTIVITIES.

9. Company Indemnity. Company will defend and indemnify Customer and hold it
harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, and
expenses (including but not limited to reasonable attorneys’ fees) arising from a claim
by a third party that Customer’s authorized use of the Products infringes that third
party’s United States patent, copyright, or trade secret rights. The foregoing
indemnification obligation of Company is contingent upon Customer promptly notifying
Company in writing of such claim, permitting Company sole authority to control the
defense or settlement of such claim and providing Company reasonable assistance (at
Company’s sole expense) in connection therewith. If a claim of infringement under this
Section occurs, or if Company determines a claim is likely to occur, Company will have
the right, in its sole discretion, to either (i) procure for Customer the right or license to
continue to use the Products free of the infringement claim, or (ii) modify the Products to
make them non-infringing, without loss of material functionality. If neither of these
remedies is reasonably available to Company, Company may, in its sole discretion,
immediately terminate this Agreement and related Order(s) and, upon return of the
infringing Products from Customer, refund the fees paid for such Products, prorated
over twenty-four (24) months from initial delivery of the Products to Customer.
Notwithstanding the foregoing, Company will have no obligation with respect to any
claim of infringement that is based upon or arises out of (i) the use or combination of the
Products with any hardware, software, products, data, or other materials not provided
by Company, (ii) modification or alteration of the Products by anyone other than
Company, (iii) use of the Products in excess of the rights granted in this Agreement, or
(iv) any specifications or other intellectual property provided by Customer (collectively,
the “Excluded Claims”). The provisions of this Section state the sole and exclusive
obligations and liability of Company and its licensors and suppliers for any claim of
intellectual property infringement arising out of or relating to the Products or this
Agreement, and are in lieu of any implied warranties of non-infringement, all of which
are expressly disclaimed.

Customer Indemnity. Customer will defend and indemnify Company and hold it
harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, and
expenses (including but not limited to reasonable attorneys’ fees) incurred by Company
as a result of any claim by a third party arising from (i) Customer’s use of the Products
in breach of this Agreement or (ii) the Excluded Claims. The foregoing indemnification
obligation of Customer is contingent upon Company promptly notifying Customer in
writing of such claim, permitting Customer sole authority to control the defense or
settlement of such claim and providing Customer reasonable assistance (at Customer’s
sole expense) in connection therewith.

10. Limitations of Liability.

NEITHER COMPANY NOR ITS VENDORS AND LICENSORS SHALL HAVE ANY
LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS,
SALES, BUSINESS, DATA, OR OTHER INCIDENTAL, CONSEQUENTIAL, OR
SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE DAMAGES,
OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THIS
AGREEMENT, THE PRODUCTS, AND ANY SERVICES RENDERED HEREUNDER.
THE TOTAL LIABILITY OF COMPANY AND ITS VENDORS AND LICENSORS TO
CUSTOMER OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, THE
PRODUCTS, AND ANY SERVICES RENDERED HEREUNDER FOR ANY AND ALL
CLAIMS OR TYPES OF DAMAGES SHALL NOT EXCEED THE TOTAL FEES PAID OR
PAYABLE HEREUNDER BY CUSTOMER FOR THE PRODUCT OR SERVICE AS TO
WHICH THE LIABILITY RELATES, BUT IN NO EVENT MORE THAN AGGREGATE
FEES PAID BY CUSTOMER IN THE THIRTY (30) DAYS PRIOR TO THE FIRST
EVENT GIVING RISE TO LIABILITY. The allocations of liability in this Section represent
the agreed, bargained-for understanding of the parties and Company’s compensation
hereunder reflects such allocations. The limitation of liability and types of damages
stated in this Agreement are intended by the parties to apply regardless of the form of
lawsuit or claim a party may bring, whether in tort, contract or otherwise, and regardless
of whether any limited remedy provided for in this Agreement fails of its essential
purpose.

No action arising out of this Agreement may be brought by either party more than two
(2) years after such cause of action accrues, except that an action for nonpayment may
be brought within two (2) years of the date of the last payment.

11. Term and Termination.

This Agreement shall be effective as of the Effective Date, and shall remain in full
force and effect until terminated in accordance with the terms of this Section 11.

Subject to the terms of Section 3.1 below, either party may terminate this
Agreement for any reason (with or without cause) at any time by giving the other party
at least thirty (30) days’ prior written notice, provided that the party seeking termination
is not in default under this Agreement.

If Company believes in good faith that Customer’s ability to make payments may be
impaired, or if Customer fails to pay any invoice when due and does not make such
payment within ten (10) days after receipt of notice from Company of such failure,
Company may, in its sole discretion, either: (i) suspend delivery or performance of any
SOW or Order, or any remaining balance thereof, until such payment is made; or (ii)
terminate any SOW or Order, or any remaining balance thereof. In either event,
Customer shall remain liable to pay for any Products already shipped, any Services
already performed, and all non-standard Products (as designated by Company) ordered
by Customer.

Either party may terminate an SOW or an Order upon a material breach of the SOW
or Order by the other, if the breaching party does not cure the breach within thirty (30)
days after receipt of written notice from the other party specifying the breach.

Effects of Termination.

All SOWs and Orders existing at the time of termination of this Agreement shall
remain in effect and shall be performed in accordance with and subject to the terms and
conditions of this Agreement (all of which shall survive with respect to such SOWs and
Orders), except for any SOWs or Orders terminated under Section 2.3 above.

In the event of any termination of an SOW or Order, Customer shall pay for all
work in process (including charges for labor and materials) and all Products ordered as
of the effective date of termination the particular SOW or Order, as applicable. In
addition, if an SOW specifies a term for which Company shall provide Services to
Customer (e.g., 36 months), and that SOW is terminated by Company for cause
(including nonpayment) or by Customer without cause, then all future, recurring Service
fees associated with the remaining term of such SOW shall become immediately due
and payable, and shall be paid by Customer to Company upon the effective date of
such termination.

The exercise of the right to terminate this Agreement and any SOW or Order shall
be in addition to any other right and remedy provided in this Agreement or existing at
law or equity that is not otherwise excluded or limited under this Agreement.

12. Miscellaneous Provisions.

S. Governmental Rights. The software Products are commercial computer software
as described in DFARS 252.227-7014(a)(1) and FAR 2.101. If acquired by or on behalf
of any the Department of Defense (“DOD”) or any component thereof, the U.S.
Government acquires this commercial computer software and/or commercial computer
software documentation subject to the terms of this Agreement as specified in DFARS
227.7202-3, Rights in Commercial Computer Software or Commercial Computer
Software Documentation. If acquired by or on behalf of any civilian agency, the U.S.
Government acquires this commercial computer software and/or commercial computer
software documentation subject to the terms of this Agreement as specified in FAR
12.212, Computer Software.

Non-Solicitation. Customer agrees that the personnel of Company are critical to
Company. Therefore, Customer agrees not to solicit, make offers of employment, or hire
in any capacity, either directly or indirectly, or enter into any consulting relationships or
agreements with, any Company personnel associated with this Agreement during the
term of this Agreement and for a period of one (1) year thereafter. If Customer violates
this prohibition, Customer shall immediately pay to Company an amount equal to the
annual compensation of the Company personnel solicited or hired.

Independent Contractor. Company, its personnel, agents, subcontractors and
independent contractors are not employees or agents of Customer and are acting as
independent contractors with respect to Customer. Neither party is, nor shall be
considered to be, an agent, distributor, partner, joint venturer or representative of the
other party for any purpose, and neither party shall have the authority to act on behalf
of, or in the name of, or to bind the other party in any manner whatsoever.

Force Majeure. Neither party to this Agreement shall be liable for delays or failures in
performance under this Agreement (other than the payment obligations or breach of
confidentiality requirements) resulting from acts or events beyond the reasonable
control of such party, including acts of war, terrorism, acts of God, earthquake, flood,
embargo, riot, sabotage or dispute, governmental act or failure of the Internet, power
failure, energy interruption or shortages, other utility interruption, telecommunications
interruption provided that the delayed party: (i) gives the other party prompt notice of
such cause; and (ii) uses its reasonable commercial efforts to promptly correct such
failure or delay in performance.

Entire Agreement; Construction; Modifications. This Agreement, including any
and all SOWs and Orders, constitutes the entire understanding between the parties
related to this Agreement which understanding supersedes and merges all prior
understandings and all other proposals, letters, agreements, oral or written. The parties
further agree that there are no other inducements, warranties, representations or
agreements regarding the matters herein between the parties except as expressly set in
this Agreement. In the event of any conflict between the body of this Agreement and any
SOW, sales quote, or Order, the body of this Agreement shall control. As used herein,
the term “including” shall mean “including, without limitation”; the term “includes” as
used herein shall mean “includes, without limitation”; and terms appearing in the
singular shall include the plural and terms appearing in the plural shall include the
singular. This Agreement may not be modified, amended or altered in any manner
except by a written agreement signed by both parties, and any attempt at oral
modification shall be void and of no effect.

Purchase Orders. COMPANY SPECIFICALLY OBJECTS TO ANY ADDITIONAL
TERMS BEING ADDED THROUGH A PURCHASE ORDER OR SIMILAR DOCUMENT.
IF A PURCHASE ORDER IS REQUIRED BY CUSTOMER, THE PARTIES AGREE
THAT ANY ADDITIONAL TERMS CONTAINED THEREIN SHALL NOT BECOME PART
OF THE AGREEMENT BETWEEN THE PARTIES AND SPECIFICALLY THAT THE
TERMS OF THIS AGREEMENT SHALL SUPERSEDE ANY AND ALL TERMS IN ANY
PURCHASE ORDER.

Assignment. Customer may not assign its rights or delegate its duties under this
Agreement either in whole or in part without the prior written consent of Company. Any
attempted assignment or delegation without such consent will be void and Company
may immediately terminate this Agreement for cause. Except as provided above, this
Agreement shall apply to, inure to the benefit of, and be binding upon the parties hereto
and their successors and assigns.

No Waiver. The waiver or failure of either party to exercise any right in any respect
provided for herein shall not be deemed to be a waiver of any further right hereunder.

Governing Law; Severability. This Agreement shall be governed by and construed
in accordance with Swiss law without regard to choice of law principles. Any dispute,
controversy or claim arising out of or relating to this Agreement or the existence, validity,
interpretation, breach or termination hereof, shall be finally adjudicated and resolved by
compulsory arbitration in accordance with the International Chamber of Commerce
Rules and Procedures (“ICC”). The arbitration proceeding shall take place in Zurich,
Switzerland. Notwithstanding the foregoing, Company shall have the right to seek
injunctive or pre-judgment relief in any court of competent jurisdiction to prevent or
enjoin the misappropriation, misuse, infringement or unauthorized disclosure of
Company’s Confidential Information or intellectual property rights. No Federal
Acquisition Regulations shall be construed to apply to Company without Company’s
written agreement thereto. The United Nations Convention for the International Sale of
Goods shall not apply to this Agreement. In the event any provision of this Agreement is
held by a tribunal of competent jurisdiction to be contrary to law, the remaining
provisions of this Agreement will remain in full force and effect.

Attorneys’ Fees. The prevailing party will be entitled to recover, in addition to any
other remedy, reimbursement for reasonable attorneys’ fees, court costs, costs of
investigation, expert fees and other related expenses incurred in connection with any
enforcement of rights under this Agreement in law or in equity, including an action for
declaratory relief.

Survivability. All provisions of this Agreement relating to confidentiality, non-
disclosure, intellectual property, disclaimers, limitation of liability, indemnification,
payment, and no hiring, and any other provisions which must survive in order to give
effect to their meaning, shall survive the termination of this Agreement.

Notices. Any notice provided pursuant to this Agreement, if specified to be in writing,
shall be in writing and shall be deemed given: (i) if by facsimile, hand delivery or by
delivery service, upon receipt thereof; or (ii) if mailed, three days after deposit in the
U.S. mail, postage prepaid. All notices shall be addressed to the parties at the
addresses specified below or at such other addresses as either party may in the future
specify in writing to the other.

Headings; Counterparts. The headings contained in this Agreement are for
purposes of convenience only and shall not affect the meaning or interpretation of this
Agreement. This Agreement may be executed in two or more original or facsimile
counterparts, each of which will be deemed an original, but all of which together shall
constitute one and the same instrument.