Impelix IMPACT™

This is the Impelix IMPACT^TM Software-as-a-Service Agreement for customer-end-users a/k/a customer-end-user agreement (the “Agreement”), for the Impelix IMPACT^TM SaaS Subscription Products a/k/a Impelix IMPACT^TM Platform offered and provided as a software-as-a-service subscription service (the “Services”) by Impelix, LLC, a Delaware limited liability company (“Provider”). Capitalized terms used herein have the meanings assigned to them in this Agreement.

PROVIDER PROVIDES ITS SERVICES FOR THE IMPELIX IMPACT^TM SAAS SUBSCRIPTION PRODUCT AND CUSTOMER IDENTIFIED IN AN APPLICABLE ORDER AND SUBSCRIPTION CONFIGURATION THEREIN, SUBJECT TO THE TERMS OF THIS AGREEMENT AND THE SERVICES DOCUMENTS AND CONDITIONED UPON PROVIDER BEING TIMELY PAID THE APPLICABLE FEE. YOU HAVE RECEIVED THIS AGREEMENT IN CONNECTION WITH AN ORDER AND SUBSCRIPTION FOR THE SERVICES SUBMITTED TO PROVIDER FOR CUSTOMER. PLEASE READ THIS AGREEMENT CAREFULLY, THIS AGREEMENT IS LEGALLY BINDING UPON CUSTOMER AND (AS APPLICABLE, FOR ANY USE BY) THE AUTHORIZED CHANNEL PARTNER IDENTIFIED IN THE ORDER, CONTAINS BINDING OBLIGATIONS, AND PROVIDES THAT DISPUTES ARE TO BE RESOLVED BY ARBITRATION (SUBJECT TO CERTAIN LIMITED EXCEPTIONS SPECIFIED IN THE DISPUTE RESOLUTION PROVISIONS OF THIS AGREEMENT).

BY EXECUTING, WHETHER MANUALLY OR ELECTRONICALLY, AN ORDER, OR DELIVERING A PURCHASE ORDER OR OTHER CONFIRMATION TO PROVIDER OR THE AUTHORIZED CHANNEL PARTNER FOR A SUBSCRIPTION OR SERVICES, OR USING, ACCESSING, IMPLEMENTING, DEPLOYING, COMMENCING, OPERATING, DOWNLOADING, INSTALLING, REGISTERING FOR OR OTHERWISE USING OR ACCESSING ANY PART OF THE SERVICES, OR CLICKING AN “I ACCEPT” OR “I AGREE” OR “CONTINUE” BUTTON ASSOCIATED WITH THIS AGREEMENT, YOU AND CUSTOMER (AND ANY AUTHORIZED CHANNEL PARTNER ACCESSING THE SERVICES ON CUSTOMER’S BEHALF OR IN RELATION TO CUSTOMER SYSTEMS) EXPRESSLY AND EXPLICITLY ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT IS A BINDING AGREEMENT UPON CUSTOMER AND THE AUTHORIZED CHANNEL PARTNER.

ALL DIRECT AND INDIRECT USE AND ACCESS OF THE SERVICES AND SUBSCRIPTION, ARE SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE ORDER AND THE RELATED TERMS AND CONDITIONS, DOCUMENTS AND POLICIES OF PROVIDER IN EFFECT FROM TIME TO TIME AND/OR REFERRED TO THEREIN AND HEREIN (COLLECTIVELY SOMETIMES REFERRED TO HEREIN AS THE “SERVICES DOCUMENTS”). CUSTOMER (AND ANY AUTHORIZED CHANNEL PARTNER ACTING ON CUSTOMER’S BEHALF) HEREBY AGREES TO AND ACCEPTS THE TERMS THEREOF.

IF YOU ARE AN EMPLOYEE OR OTHER REPRESENTATIVE ACCEPTING THIS AGREEMENT ON BEHALF OF CUSTOMER (OR AN AUTHORIZED CHANNEL PARTNER ACTING ON CUSTOMER’S BEHALF), YOU HEREBY REPRESENT AND WARRANT TO PROVIDER THAT (A) YOU HAVE THE REQUISITE POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT; AND (B) YOU ARE OVER 18 YEARS OLD AND HAVE THE LEGAL CAPACITY TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT ACCEPT ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT OR ARE NOT AUTHORIZED TO ENTER INTO THIS AGREEMENT, CONTACT PROVIDER IMMEDIATELY AND DO NOT ALLOW THE CUSTOMER OR AUTHORIZED CHANNEL PARTNER TO COMMENCE WITH, ACCEPT OR USE ANY SERVICES FALLING WITHIN THE TERMS OF THIS AGREEMENT.

SERVICES DOCUMENTS AND UPDATES THERETO FROM PROVIDER MAY BE COMMUNICATED BY VARIOUS MEANS, INCLUDING, WITHOUT LIMITATION, A URL, AN ONLINE PORTAL, WEB PAGES, EMAIL NOTIFICATION AND OTHER ELECTRONIC MEANS, AND PROVIDER IS NOT REQUIRED TO PROVIDE A PHYSICAL HARDCOPY OF SERVICES DOCUMENTS.

THE SUBSCRIPTION CONFIGURATION OF THE ORDER SPECIFIES THE PRODUCT CONFIGURATION, SUBSCRIPTION TERM AND LICENSE QUANTITIES. THE SERVICES AND SUBSCRIPTION INCLUDE WORKS OF AUTHORSHIP AND COPYRIGHTED OR COPYRIGHTABLE WORKS OF PROVIDER OR ITS LICENSORS PROTECTED UNDER UNITED STATES AND INTERNATIONAL LAWS AND TREATIES. THIS AGREEMENT DOES NOT SELL OR TRANSFER ANY COPYRIGHT OR INTELLECTUAL PROPERTY OR OWNERSHIP RIGHTS OF PROVIDER OR ITS LICENSORS. NO LICENSE OR SUBSCRIPTION FOR THE SERVICES ARE PROVIDED EITHER BEYOND THE DURATION OF THE SUBSCRIPTION TERM THEREFOR, OR TO THE EXTENT THAT LICENSEE ACCESSES THE SERVICES OR COMPONENTS THEREOF ILLEGITIMATELY OR UNLAWFULLY. USE OF THE SERVICES IS WITHIN, AND NOT OUTSIDE OF, THE UNITED STATES OF AMERICA.

1. Subscription, Subscription Licenses, Certain Definitions.

1.01 Order and Subscription. The Services are provided in fulfillment of the Subscription under an applicable Order. Use of and access to the Services provided by Provider is established by and subject to the Order, this Agreement and timely payment of associated Fees for the Subscription and required quantity of Subscription licenses. The “Order” as that term is used herein, (i) is an order placed with and accepted by Provider, pursuant to a quotation or proposal issued by Provider accepted by the Authorized Channel Partner or the Customer, for Subscriptions to the Impelix IMPACT^TM SaaS Subscription Product(s) ordered therein for, or for the benefit of, the Customer and/or Customer Systems, (ii) has been placed through or in association with an Authorized Channel Partner of Provider, or placed directly with Provider, (iii) will specify the Subscription Term, quantities and associated Fees (iv) will identify which of Customer or Authorized Channel Partner are responsible for paying the applicable Fees to Provider.

1.02 Role of Authorized Channel Partner; Binding Agreement; Effective Date. Certain types of Authorized Channel Partners might, under separate agreements with Customer, provide separate offerings or services (unaffiliated with Provider but in conjunction with which the Services might be included) as an OEM or managed services provider or managed security services provider or similar capacity to the Customer or in relation to Customer Systems, in which case the Authorized Channel Partner is deemed to be an Authorized User of the specific Customer for it and the associated Customer Systems; and in such circumstance, the Authorized Channel Partner also undertakes the obligations of Customer under this Agreement in the same manner as if it were the Customer hereunder. This Agreement, as updated from time to time by Provider, and the terms hereof and thereof, apply to all use of and access to the Services (or any component thereof), are binding upon Customer (and, as applicable for any use by its associated Authorized Channel Partner, and its Authorized Users), and are effective commencing as of the earliest of the time and date of first use, implementation, deployment, commencement or operation of the Services for the Customer or in, on or about any Customer Systems (whether it is by or through Provider, Customer, the associated Authorized Channel Partner, an Authorized User, or otherwise, directly or indirectly), or receipt of any Services, directly or indirectly, by or for the benefit of Customer (the “Effective Date”).

1.03 Invoicing; Responsibility for Fees; Subscription License Quantities. Provider will invoice either the applicable Authorized Channel Partner or Customer for applicable Fees of an Order, depending upon the type of Authorized Channel Partner associated with the Customer and the Order. As between Provider and the Authorized Channel Partner, Provider will follow its applicable Partner Program Guidelines in this regard. If Customer is not invoiced directly by Provider for Fees, then the Authorized Channel Partner associated with the Order bears responsibility to Provider for payment of the Fees with Customer bearing responsibility for payment of the charges to it by the Authorized Channel Partner. If Customer is invoiced directly by Provider for Fees, then it bears responsibility to Provider for payment of the Fees. The required number of Subscription licenses for the Customer’s Subscription for the Services are based upon number of the persons and email addresses that have access to or connect to all or any portion of the Customer’s non-guest Customer Systems (this typically will include but is not limited to regular part-time and full-time employees and contractors; contractors would also include, for example, personnel of the Authorized Channel Partner provided access on Customer’s behalf to the Customer’s network environment, Customer Systems or Impelix IMPACT^TM SaaS Subscription Product as an authorized party of the Customer to monitor or manage security services for the Customer). The required Subscription licenses count will be monitored from time to time by the Services, and Customer may be invoiced for shortfalls in the required number of Subscription licenses (when compared to Subscription license quantity purchased by/for the Customer and/or Customer Systems). SUBSCRIPTION LICENSE QUANTITIES ARE SUBJECT TO VERIFICATION BY PROVIDER AND ITS LICENSORS, AND PROVIDER WILL ACCORDINGLY ISSUE A SUPPLEMENTAL INVOICE FOR A SHORTFALL IN REQUIRED SUBSCRIPTION LICENSE QUANTITIES FOR THE CUSTOMER AND/OR CUSTOMER SYSTEMS. . For sake of clarity, the persons / email addresses do not necessarily have to directly access or use the Impelix IMPACT^TM SaaS Subscription Product or Services to be included in the required Subscription licenses count.

1.04 Certain Definitions.

“Access Credentials” means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual's identity and authorization to access and use the Services.

“Authorized Channel Partner” means a channel partner of Provider having active standing in the Impelix Partner Program at the effective date of the Order, and designated as being associated with the Order.

“Authorized Users” means Customer's employees, consultants, contractors, and agents (a) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (b) for whom access to the Services has been purchased hereunder. For sake of clarity, the term “Authorized Users” does not limit the number of Subscription licenses required for Services, rather, it relates to those technology personnel acting for Customer in the management of security of Customer Systems.

“Customer” is the specific customer identified in the Order or for which the Order is made for, or for the benefit of, such customer and/or associated Customer Systems.

“Customer Data” means information, data, Personal Information, events, incidents and other content, in any form or medium, that is collected, downloaded, logged or otherwise received, directly or indirectly, from Customer or Customer Systems by or through the Services. For the avoidance of doubt, Customer Data does not include Resultant Data or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User.

“Customer Systems” means the Customer's information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of separately-provided third-party or Authorized Channel Partner services, in each instance as are located within the United States of America.

“Documentation” means any manuals, instructions, or other documents or materials that the Provider provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Services or Provider Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.

“Fees” are the fees and charges of Provider for the Impelix IMPACT^TM SaaS Subscription Product and Services for the applicable Subscription Term and Subscription licenses quantities specific to the applicable Customer (and/or the Authorized Channel Partner associated with that Customer) and Customer Systems. Fees may be payable directly by Customer to Provider, or by the Authorized Channel Partner on Customer’s behalf, depending upon the type of Authorized Channel Partner and the Provider’s Partner Program guidelines.

“Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Customer or any Authorized User from accessing or using the Services or Provider Systems as intended by this Agreement. Harmful Code does not include any Provider Disabling Device.

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.

“Personal Information” means information that Customer provides or for which Customer provides access to Provider, or information which Provider creates or obtains on behalf of Customer, in accordance with this Agreement that: (i) directly or indirectly identifies an individual (including, for example, names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers); or (ii) can be used to authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, user identification and account access credentials or passwords, financial account numbers, credit report information, student information, biometric, genetic, health, or health insurance data, answers to security questions, and other personal identifiers). Customer's business contact information is not by itself Personal Information.

“Process” means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings.

“Provider Disabling Device” means any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by Provider or its designee to disable Customer's or any Authorized User's access to or use of the Services automatically with the passage of time or under the positive control of Provider or its designee.

“Provider Materials” means the Services, Services Documents, and Provider Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Provider or any Provider Personnel in connection with the Services or otherwise comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider Materials include Resultant Data and any information, data, or other content derived from Provider's monitoring of Customer's access to or use of the Services, but do not include Customer Data.

“Provider Personnel” means all individuals involved in the performance of Services as employees, agents, or independent contractors of Provider or any Subcontractor.

“Provider Systems” means the information technology infrastructure used by or on behalf of Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Provider or through the use of third-party services.

“Representatives” means, with respect to a party, that party's employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors.

“Resultant Data” means data and information related to operation of the Services on and/or within Customer Systems, used by Provider in an anonymized manner or an aggregate manner or de-identified manner, including but not limited to statistics, appliance metrics, indicators of compromise, or to compile statistical and performance information and alerts related to the provision and operation of the Services.

The “Subscription” means the resulting subscription, for, or for the benefit of, the Customer and/or Customer Systems (or the Authorized Channel Partner on Customer’s behalf), for the applicable Impelix IMPACT^TM SaaS Subscription Product, Subscription Term and number of licenses set forth in the Order, to be fulfilled by the Services.

The “Subscription Term” is the term of years (or other applicable time period) identified in the Order for the initial Subscription order for, or for the benefit of, the Customer and/or Customer Systems (or the Authorized Channel Partner on Customer’s behalf) (understanding that the first Subscription Term commences with the Effective Date), or any term of year(s) (or other applicable time period) of a Subscription renewal term.

“Third-Party Materials” means materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment, or components of or relating to the Services or Provider Materials that are not proprietary to Provider.

2. Updates to Services Documents; Resolving Conflicting Terms (if any).

A Customer’s direct or indirect use and operation of the Services on the Customer Systems are subject to this Agreement and Provider’s Services Documents further described herein. Update of the Services Documents applicable to Customer will be provided or made available to Customer from time to time in electronic form or as otherwise provided under the terms of the Services Documents. In the event of any conflict among the Services Documents and their terms and provisions, (i) discovered by Customer, then Customer will provide Provider with written notice of the details of the conflicting term(s) and/or provision(s), or (ii) discovered by Provider or the Authorized Channel Partner, then Provider shall have the opportunity to provide updates to any of the Services Documents and/or issue additional Services Documents so as to reasonably resolve the conflict in good faith and a manner not inconsistent with the order quantities and payment terms set forth in the Order.

3. Services.

3.01 Access and Use. Subject to and conditioned on Customer's and its Authorized Users' compliance with the terms and conditions of this Agreement and the Services Documents, Provider hereby grants Customer (together with its Authorized Users acting on its behalf) a non-exclusive, non-transferable, limited right to access and use the Services during the Subscription Term, for operation of the Services on Customer Systems and access to the Services by Authorized Users in accordance with the terms and conditions herein. Such access, use and operation is limited to Customer's (together with its Authorized Users acting on its behalf) internal business use for, or for the benefit of, Customer in the management of security of its Customer Systems (but not in the management of security of the systems of others). Provider shall timely provide to Customer (or the Authorized Channel Partner acting on Customer’s behalf) the Access Credentials for deployment of the Services for Customer.

3.02 Documentation License. Provider hereby grants to Customer (together with its Authorized Users acting on its behalf) a non-exclusive, non-sublicensable, non-transferable, limited license to use the Documentation during the Subscription Term solely for Customer's (together with its Authorized Users acting on its behalf) internal business use for, or for the benefit of, Customer in connection with use and operation of the Services in the management of security of the Customer Systems (but not in the management of security of the systems of others).

3.03 Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:

a.Provider (together with its licensors) has and will retain sole control over the operation, provision, maintenance, and management of the Provider Materials; and

b.Customer (together with its Authorized Users acting on its behalf) has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and the responsibility for properly monitoring, permitting and restricting all access to and use of the Provider Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to the Services or Provider; (ii) results obtained from any use of the Services or Provider Materials; and (iii) conclusions, decisions, or actions based on such use.

3.04 Services Management. Each party shall, throughout the Subscription Term, maintain within its organization a service manager to serve as such party's primary point of contact. Each service manager shall be responsible for providing all day-to-day consents and approvals in connection with implementation and administration of the Services on behalf of such party under this Agreement. Each party shall ensure its service manager has the requisite organizational authority, skill, experience, and other qualifications to perform in such capacity.

3.05 Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any copyright or other Intellectual Property Rights in or relating to, the Services, Provider Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, the Provider Materials, and the Third-Party Materials and any and all Intellectual Property therein are and will remain with Provider and the respective rights holders in the Third-Party Materials.

3.06 Feedback. Customer (together with its Authorized Users acting on its behalf) may provide feedback to Provider or its licensors regarding functions, operation and utility of the Services and components thereof and reports of any issues, bugs or service errors (collectively the “Feedback”). Customer (together with its Authorized Users acting on its behalf) agrees that all Feedback provided (including but not limited to feature suggestions and corrections) becomes the property of Provider and its licensors of the components of the Services to which such Feedback relates, and may be used and exploited by them without any duty of accounting or payment.

3.07 Support as part of Services. Provider will provide certain support and maintenance services with respect to Provider’s ongoing operation of the Services during the Subscription Term, substantially in conformity with Provider’s then-current Support Services Policy in effect from time to time (the “Support Services”).

3.08 Backups. The Provider Systems are programmed to perform routine data backups of the Resultant Data and Customer Data arising from operation of the Services, for Provider’s (and its licensors’) operation of the Services and not for the use by Customer for other purposes. Provider has no obligation to provide Customer with copies of such backups. In the event of any loss, destruction, damage, or corruption of Customer Data caused by the Provider Systems or Services, Provider will, as its sole obligation and liability and as Customer's sole remedy, use commercially reasonable efforts to restore the Customer Data from Provider's then most current backup of such Customer Data, as may in Provider’s opinion be necessary for ongoing operation of the Services.

3.09 Information Security. Provider will employ security measures with respect to Provider’s ongoing operation of the Services during the Subscription Term and in the event of a data breach, substantially in conformity with Provider’s then-current Data Privacy & Security Policy in effect from time to time.

3.10 Changes. Provider reserves the right, in its sole discretion, to make any changes to the Services and Provider Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Provider's services to its customers; (ii) the competitive strength of or market for Provider's services; or (iii) the Services' cost efficiency or performance; or (b) to comply with applicable Law.

3.11 Subcontractors. Provider may from time to time in its discretion engage third parties, including but not limited to its licensors and personnel, to perform any part of the Services (each, a “Subcontractor”).

3.12 Suspension or Termination of Services. Provider may, directly or indirectly, and by use of a Provider Disabling Device or any other lawful means, suspend, terminate, or otherwise deny Customer's, any Authorized User's, or any other Person's access to or use of all or any part of the Services or Provider Materials, without incurring any resulting obligation or liability, if: (a) Provider receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Provider to do so; or (b) Provider believes, in its sole discretion, that: (i) Customer or any Authorized User has failed to comply with any material term of this Agreement, or Provider has not been paid the applicable Fees for Customer’s use of the Services (or the Authorized Channel Partner’s use of the Services on Customer’s behalf), or Customer (or the Authorized Channel Partner associated with the Customer) has accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or configuration requirements of the Services; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities, as determined by Provider in good faith in its sole discretion; or (iii) this Agreement or the Subscription Term expires or is terminated. This Section 3.12 does not limit any of Provider's other rights or remedies, whether at law, in equity, or under this Agreement.

4. Restrictions; Services Usage.

4.01 Use Restrictions. Customer (together with its Authorized Users acting on its behalf) shall not, and shall not permit any other Person to, access or use the Services or Provider Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer (together with its Authorized Users acting on its behalf) shall not, except as this Agreement expressly permits:

a. copy, modify, or create derivative works or improvements of the Services or Provider Materials;

b. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or Provider Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;

c. reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or Provider Materials, in whole or in part;

d. bypass or breach any security device or protection used by the Services or Provider Materials or access or use the Services or Provider Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;

e. input, upload, transmit, or otherwise provide to or through the Services or Provider Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;

f. damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Provider Systems, or Provider's provision of services to any third party, in whole or in part;

g. remove, delete, alter, or obscure any trademarks, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or Provider Materials, including any copy thereof;

h. access or use the Services or Provider Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Provider customer), or that violates any applicable Law;

i. access or use the Services or Provider Materials for purposes of for performing comparisons or other ‘benchmarking’ activities, or for competitive analysis of the Services or Provider Materials, the development, provision, or use of a competing software service or product or any other purpose that is to the Provider's detriment or commercial disadvantage;

j. access or use the Services or Provider Materials in, or in association with, the design, construction, maintenance, or operation of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Services could lead to personal injury or severe physical or property damage or release of hazardous substances; or

k. otherwise access or use the Services or Provider Materials beyond the scope of the authorization granted under this Section 4.01.

4.02 Corrective Action and Notice. If Customer (or any of its Authorized Users acting on its behalf) becomes aware of any actual or threatened activity prohibited by Section 4.01, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Provider Materials; and (b) notify Provider of any such actual or threatened activity and cooperate with all reasonable requests of Provider.

5. Customer Systems.

5.01 Customer Systems and Cooperation. Customer shall at all times during the Subscription Term: (a) set up, maintain, and operate in good repair the Customer Systems on or through which the Services are accessed or used; (b) provide Provider Personnel with such access to Customer's (and its Authorized Users acting on its behalf) premises and Customer Systems as is necessary for Provider to perform the Services; and (c) provide all cooperation and assistance as Provider may reasonably request to enable Provider to exercise its rights and perform its obligations under and in connection with this Agreement.

5.02 Customer Control and Responsibility. Customer (together with its Authorized Users acting on its behalf) 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 Services; (c) 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 Services and Provider Materials 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.

5.03 Access and Security. Customer (together with its Authorized Users acting on its behalf) shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Services.

5.04 Effect of Customer Failure or Delay. Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement.

6. Confidentiality.

6.01 Confidential Information. In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 6.02, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party's technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential”. Without limiting the foregoing: all Provider Materials are the Confidential Information of Provider and the terms of this Agreement are the Confidential Information of Provider.

6.02 Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

6.03 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:

a. not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;

b. except as may be permitted by and subject to its compliance with Section 6.04, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 6; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 6;

c. safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care;

d. promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and cooperate with Disclosing Party to prevent further unauthorized use or disclosure; and

e. ensure and bear responsibility for its Representatives' compliance with the terms of this Section 6.

6.04 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can, with the cooperation of the Receiving Party, contest disclosure and/or seek a protective order or other remedy or waive its rights under Section 6.03.

6.05 Obligations as to Trade Secrets. Notwithstanding any other provisions of this Agreement, the Receiving Party's obligations under this Section 6 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.

7. Intellectual Property Rights

7.01 Provider Materials. As between Provider, on the one hand, and Customer (together with its Authorized Users acting on its behalf) and the applicable Authorized Channel Partner, on the other hand, (i) all right, title, and interest in and to the Provider Materials, including all Intellectual Property Rights therein, are the property of and will remain with and belong to Provider, and (ii) with respect to Third-Party Materials, all right, title, and interest, including all Intellectual Property Rights therein, are the property of and will remain with and belong to the applicable third-party provider. Customer (together with its Authorized Users acting on its behalf) has no right, license, or authorization with respect to any of the Provider Materials except as expressly set forth in this Agreement and in each instance not to exceed the normal operating use of the Services as provided herein. All other rights in and to the Provider Materials are expressly reserved by Provider. In furtherance of the foregoing, Customer (together with its Authorized Users acting on its behalf) hereby unconditionally and irrevocably grants to Provider an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.

7.02 Customer Data. As between Customer and Provider, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 7.03.

7.03 Consent to Use Customer Data. Customer (together with its Authorized Users acting on its behalf) hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary or useful to Provider, its licensors, and the Provider Personnel to enforce this Agreement and exercise Provider's (and its licensors’) rights and perform Provider's obligations hereunder and/or pursuant to any other agreement between Provider Personnel or Provider’s Authorized Channel Partner or licensors, on the one hand, and Provider, on the other hand.

8. Representations, Warranties and Covenants; Disclaimer of Warranties

8.01 Operation of Services. Conditioned upon Provider having been paid the applicable Fees, Provider agrees to use commercially reasonable best efforts to operate the Services for use by or for Customer and/or Customer Systems during the Subscription Term, in substantial conformity with the then-current primary features and configuration requirements of the Impelix IMPACT^TM SaaS Subscription Product subscribed for by or on behalf of Customer, subject to periodic maintenance, support and updating during which times Services will be unavailable for limited time periods therefor. Without acting in limitation of the other terms and provisions of this Agreement that may limit Provider’s obligations to continue to provide Services or for any interruption or failure of the Services, Customer’s (and its Authorized Users’ and Authorized Channel Partner’s) sole and exclusive remedy for a violation of the immediately preceding sentence, is the provision (by Provider, and in its sole discretion, Provider Personnel, licensors and Authorized Channel Partners, as the case may be) of Support Services as described in Section 3.07 hereof, and Provider warrants to Customer that, in response to Customer’s properly initiated request to Provider for Support Services, Provider will use commercially reasonable efforts to initiate the Support Services as are made available by Provider as part of the Services and in a reasonably professional manner under the circumstances.

8.02 Mutual Representations and Warranties. Each party represents and warrants to the other party that:

a. it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;

b. it has the full corporate or limited liability company right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement;

c. the entering into and/or execution of this Agreement by its representative has been duly authorized by all necessary corporate or organizational action of such party; and

d. this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.

8.03 Customer Data Assurances. Customer (together with its Authorized Users acting on its behalf) represents, warrants, and covenants to Provider that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Provider and Processed in accordance with this Agreement, they do not violate any Intellectual Property Rights, applicable Law or any privacy or other rights of any third party.

8.04 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 8.01 AND SECTION 8.02, ALL SERVICES AND PROVIDER MATERIALS ARE PROVIDED “AS IS.” PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, STANDARDS OF PERFORMANCE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS EXPRESSLY DISCLAIMED.

9. Indemnification Limitations of Liability.

9.01 Provider Indemnification. Subject to the applicable limitations of this Agreement, Provider agrees during the Subscription Term to indemnify, defend and hold harmless Customer from and against any and all actual, direct, out-of-pocket losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) arising from a claim brought against Customer by any third party (other than the Authorized Channel Partner by or through which Customer submitted the Order or procured the Impelix IMPACT^TM SaaS Subscription Products or Services) for infringement by reason of Customer’s (together with its Authorized Users acting on its behalf) use of the Services in the manner as authorized in this Agreement and within the permissible normal operating use of the Impelix IMPACT^TM SaaS Subscription Product, where the Customer’s use infringes the third party claimant’s registered United States trademark or patent (in each case, as in existence at the time of the Customer’s commencement of the applicable Subscription Term of the Impelix IMPACT^TM SaaS Subscription Product), or where the infringement is due to misappropriation of the third party claimant’s U.S. copyright (any such infringement claim as aforesaid is sometimes referred to herein as an “Infringement Claim”). In the event of an actual or threatened Infringement Claim, at Provider’s sole discretion, Provider or its licensors may (i) enable Customer to continue to use the Impelix IMPACT^TM SaaS Subscription Product and/or Services, as applicable; (ii) modify the Impelix IMPACT^TM SaaS Subscription Product and/or Services to make it non-infringing; (iii) require Customer to cease use of the Impelix IMPACT^TM SaaS Subscription Products to the extent they are the subject of the infringement claim (and in the case of this clause (iii), Provider may either make available a non-infringing commercially reasonable and viable substitute for the Impelix IMPACT^TM SaaS Subscription Product and/or Services and/or components of the Provider Materials for the balance of the theretofore paid then-current Subscription Term, or refund any prepaid but unearned fees (prorated for the balance of the theretofore paid then-current Subscription Term) attributable to the materials or portion of the Impelix IMPACT^TM SaaS Subscription Product with regard to which the use is discontinued, and/or (iv) assume the defense of the Infringement Claim.

9.02 Limitations on Provider Indemnification. Notwithstanding Section 9.01, the obligations of Provider under Section 9.01 shall not apply if the alleged infringement, violation or misappropriation arises, from: (v) Third-Party Materials or Customer Data, (w) use of the Impelix IMPACT^TM SaaS Subscription Product either not in accordance with the terms and conditions set forth in this Agreement, or not within the permissible normal operating use of the Impelix IMPACT^TM SaaS Subscription Product, (x) the modification of any Impelix IMPACT^TM SaaS Subscription Product not approved by Provider; or (y) combination, operation or use of any Impelix IMPACT^TM SaaS Subscription Product with other software, hardware or technology which either do not meet the configuration requirements of the Impelix IMPACT^TM SaaS Subscription Product or are not reasonably required for use of the Impelix IMPACT^TM SaaS Subscription Product, and such infringement arose out of use or combination with such other software, hardware or technology; or (z) use by Customer (and/or its Authorized Users acting on its behalf) of such prior or altered release of the Impelix IMPACT^TM SaaS Subscription Product contrary to a notification by Provider to Customer, if the infringement would have been avoided by the use of a current unaltered release of the Impelix IMPACT^TM SaaS Subscription Product that Provider provided or made available to Customer.

9.03 Customer Indemnification. Customer agrees to indemnify, defend, and hold harmless Provider and its licensors from and against any and all actual, direct, out-of-pocket losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) (A) arising from Customer’s misuse of the Impelix IMPACT^TM SaaS Subscription Product or the Services (including but not limited to failure to comply with any applicable conditions or or limitations on use thereof provided in this Agreement), and (B) (subject to the applicable limitations of this Agreement) arising from or in connection with an action or proceeding or investigation brought against Provider (or its licensors) by Customer or any third party in relation to any allegation or claim (i) arising out of Customer’s (or its Authorized User’s) non-infringing use of the Services, (ii) arising from the monitoring of Customer Systems or Customer Data by the Services (or components thereof), or (iii) that the Services (or components thereof) detected, reported or failed to detect or report events, breach of security or compromise of, on, within or outside of the Customer Systems.

9.04 Indemnification Procedure. Each party shall promptly notify the other party in writing of any claim, action or proceeding for which such party believes it is entitled to be indemnified pursuant to Section 9. The party seeking indemnification shall cooperate with the other party and allow the other party (at such other party’s election, as to a third party claim, action or proceeding) to assume control of the defense (together with the costs and attorneys fees of legal counsel appointed by such other party for such defense). In circumstances where said other party has assumed control of the defense, the party seeking indemnification may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The party who assumed the defense shall have authority to defend or settle the claim, action or proceeding (provided that neither party hereto will agree, without the consent of the other party hereto, to a settlement thereof that requires by its terms that such other party hereto to pay money or make material admissions of wrongdoing); otherwise, the party in control of the defense will not settle the matter without the indemnified party’s prior written consent, which shall not be unreasonably withheld or delayed.

9.05 Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER'S (TOGETHER WITH ITS AUTHORIZED USERS ACTING ON ITS BEHALF) SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND PROVIDER MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

9.06 Limitations of Liability.

a. EXCLUSION OF DAMAGES. WITH THE EXCEPTION OF CUSTOMER’S (TOGETHER WITH ITS AUTHORIZED USERS ACTING ON ITS BEHALF) LIABILITY FOR MISUSE OR MISAPPROPRIATION OF THE SERVICES (OR ANY COMPONENT THEREOF), IN NO EVENT WILL CUSTOMER, ON THE ONE HAND, OR PROVIDER OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS, ON THE OTHER HAND, BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICES DOCUMENTS OR THEIR SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BUT NOT LIMITED TO THOSE IN CONTRACT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTORY PROVISIONS AND OTHERWISE, FOR ANY: (i) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, ANTICIPATED SAVINGS OR PROFIT OR DIMINUTION IN VALUE; (ii) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (iii) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (iv) COST OF REPLACEMENT GOODS OR SERVICES; (v) LOSS OF GOODWILL OR REPUTATION; OR (vi) SAVE WITH RESPECT TO A FINAL NON-APPEALABLE JUDGEMENT UPON A THIRD PARTY CLAIM REFERRED TO IN SECTIONS 9.01 OR 9.03 HEREOF FOR WHICH A PARTY HAS EXPRESSLY AGREED TO INDEMNIFY (SUBJECT TO THE TERMS AND LIMITATIONS OF THIS AGREEMENT) THE OTHER PARTY, ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR SPECIAL DAMAGES, (vii) EXEMPLARY, ENHANCED OR PUNITIVE DAMAGES, IN EACH INSTANCE OF THE FOREGOING REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

b. CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF PROVIDER AND ITS LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO CONTRACT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTORY PROVISIONS OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED ONE TIMES THE TOTAL AMOUNTS PAID TO PROVIDER FOR SERVICES UNDER THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

c. UNDER NO CIRCUMSTANCES IS PROVIDER OR ANY OF ITS LICENSORS, SUPPLIERS OR SOFTWARE DEVELOPERS TO BE LIABLE FOR ANY OF THE FOLLOWING, EVEN IF PROVIDER OR THEY WERE INFORMED OF THE POSSIBILITY OF SUCH LOSSES: (i) LOSS OF, OR DAMAGE TO, DATA; (ii) SAVE WITH RESPECT TO ANY LIABILITY AS MAY BE EXPRESSLY UNDERTAKEN IN RESPECT OF A FINAL NON-APPEALABLE JUDGEMENT UPON A THIRD PARTY CLAIM REFERRED TO IN SECTIONS 9.01 HEREOF FOR WHICH THE PARTY HAS EXPRESSLY AGREED TO INDEMNIFY (SUBJECT TO THE TERMS AND LIMITATIONS OF THIS AGREEMENT) THE OTHER PARTY, ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL LOSS; (iii) EXEMPLARY, ENHANCED OR PUNITIVE DAMAGES; OR (iv) LOSS OF PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.

10. Effect of Termination.

10.01 Cancelation or Termination of Services. A Subscription or Subscription Term may not be canceled (or terminated earlier than the Subscription Term) by Customer or its applicable Authorized Channel Partner, and Fees are non-refundable except and only to the extent otherwise expressly provided herein to the contrary. In the event Provider discontinues or terminates the Services during an active Subcription Term, then Provider will (if Customer and its Authorized Users have not breached or violated this Agreement) refund a prorated portion of the Fees actually received by Provider directly (either from Customer or from the Authorized Channel Partner) in respect of the balance of the then-current Subscription Term for which Fees were paid to Provider for the Customer’s use of the Services; provided, however, that in no event will Provider be liable or responsible for any damages or consequences arising from its termination of the Services, including but not limited to costs and charges Customer, Authorized Users or an Authorized Channel Partner might incur related to or in connection with procuring or implementing a suitable replacement or substitute for the Services.

10.02 Effect of Termination or Expiration. Upon any expiration or termination of the Services, the Subscription Term or this Agreement, except as expressly otherwise provided in this Agreement:

a. all rights, licenses, consents, and authorizations granted by either party to the other hereunder, and the Services, will immediately terminate;

b. Provider shall (i) promptly cease ongoing use of any Customer Data or Customer's Confidential Information, (ii) destroy all hardcopy documents and tangible materials containing, reflecting, incorporating, or based on Customer Data or Customer's Confidential Information; and (ii) permanently erase all Customer Data and Customer's Confidential Information from all systems Provider directly or indirectly controls; provided, however, such requirements shall allow the exception of a copy retained and held in confidence by Provider for legal, regulatory or archive purposes; provided further, however, that Provider's obligations under this Section do not apply to any Resultant Data;

c. Customer and its Authorized Users shall (i) immediately cease all use of any Services and Provider Materials and (ii) promptly return to Provider, or at Provider's written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any Provider Materials or Provider's Confidential Information; and (iii) upon Provider’s written request, permanently erase all Provider Materials and Provider's Confidential Information from all systems Customer directly or indirectly controls; and (iv) upon Provider’s written request, certify to Provider in a signed and notarized written instrument that Customer has complied with the requirements of this Section;

d. Notwithstanding the foregoing, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party's Confidential Information in its possession and control; and (ii) Provider may retain Customer Data in its possession or control, for legal and archival purposes; (iii) Customer (and its Authorized Users) may retain Provider Materials in its possession or control, in the case of each of subclause (i) and (ii) and (iii) in its then current state and solely to the extent and for so long as required by applicable Law; (iv) Provider may also retain Customer Data in its backups, archives, and disaster recovery systems until such Customer Data is deleted in the ordinary course; and (v) all information and materials described in this Section will remain subject to all confidentiality and other applicable requirements of this Agreement;

e. Provider may disable all Customer and Authorized User access to the Provider Materials.

10.03 Surviving Terms. The provisions of this Agreement, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement in accordance with their terms.

11. Miscellaneous.

11.01 Further Assurances. On a party's reasonable request, the other party shall cooperate and take all such further actions, as may be necessary to give full effect to this Agreement.

11.02 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

11.03 Public Announcements. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided, however, that Provider may, without Customer's consent, include Customer's name and other indicia in its lists of Provider's current or former customers of Provider in promotional and marketing materials.

11.04 Notices. Except as otherwise expressly set forth in this Agreement, any notice, request, consent, claim, demand, waiver, or other communications under this Agreement have legal effect only if in writing and addressed to a party at the address set forth on the applicable Order for the Services (or to such other address or such other person that such party may designate from time to time in accordance with this Section). Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; and (c) when sent, if by facsimile or email (in each case, with confirmation of transmission), if sent during the addressee's normal business hours, and on the next business day, if sent after the addressee's normal business hours.

11.05 Interpretation. For purposes of this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.

11.06 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

11.07 Entire Agreement. This Agreement, together with the Services Documents, constitutes the entire agreement of the parties with respect to their subject matter and the Services.

11.08 Assignment. Customer and the associated Authorized Channel Partner shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by merger, operation of law, or otherwise, without Provider's prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed. No assignment, delegation, or transfer will relieve Customer or the associated Authorized Channel Partner of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns. Provider may assign or transfer any or all of its rights and/or interests in or arising out of this Agreement and the Provider Materials, including, without limitation, to a successor to all or substantially all of Provider’s business, securities or assets.

11.09 Force Majeure.

a. No Breach or Default. In no event will Provider be liable or responsible to Customer (or its Authorized Users or associated Authorized Channel Partner), or 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 any circumstances beyond Provider's reasonable control (a “Force Majeure Event”), including (i) acts of God; (ii) flood, fire, earthquake, epidemics, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergency; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (viii) shortage of adequate power or transportation facilities.

b. Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, Provider shall give prompt written notice to Customer stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.

11.10 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

11.11 Amendment and Modification; Waiver. No amendment to, or modification of, or waiver with respect to any term of this Agreement, other than pursuant to Services Documents, is effective unless it is in writing and signed (or agreed by electronic or digital means) by an authorized representative of each party.

11.12 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

11.13 Governing Law; Agreement to Arbitrate Disputes; Dispute Resolution.

a. This Agreement shall be governed and construed by the laws of the State of Delaware, and applicable U.S. Federal law, without regard to any conflicts of law principles. Any dispute, claim or controversy arising out of, or relating to, this Agreement (and/or the Services or Provider Materials or Provider’s Partner Program), will first be attempted to be resolved by discussion between executive-level representatives of each of the parties. In the event that such dispute cannot be resolved by such discussions, any dispute, claim or controversy arising out of, or relating to, this Agreement (and/or the Services or Provider Materials or Provider’s Partner Program), and/or its validity, enforcement or breach, shall be resolved and settled by arbitration. The arbitration shall be conducted and administered by the American Arbitration Association (“AAA”) in accordance with the applicable Commercial Arbitration Rules and Mediation Procedures (“Rules”) which are in effect at the time the demand for arbitration is filed. The parties agree the Expedited Procedures under the AAA Rules shall govern the arbitration. The arbitration shall be conducted in Orange County, California by a single arbitrator. The seat of the arbitration shall be Wilmington, Delaware unless otherwise agreed to by the parties. In all arbitration proceedings, the substantive law of Delaware shall be applied, without regard to any conflicts of law principles. The parties agree the decision of the arbitrator will be final and binding upon the parties and may be entered in any court having jurisdiction thereof. The party requesting arbitration shall submit to AAA and serve upon the other party to the dispute, claim or controversy a written demand for arbitration stating the substance of the dispute, claim or controversy and the contention of the party requesting arbitration. Within twenty-one (21) days after such submission to AAA and service, the parties shall mutually agree upon a single arbitrator who shall be the sole arbitrator for resolution of the dispute, controversy or claim. If the parties cannot agree on a single arbitrator, the selection of the arbitrator shall be resolved in accordance with the Rules. The parties consent to the personal jurisdiction of the forum so specified.

b. The arbitrator is expressly provided the authority to determine all issues of arbitrability. The arbitrator shall have authority, on application by a party, to award injunctive relief and specific performance, where the failure to observe a unique right or obligation of a party would be incapable of being measured by monetary damages and irreparable damages would result in the event the right or obligation is not specifically enforced. Remedies which any party may be entitled shall be cumulative and not exclusive. THE ARBITRATOR SHALL HAVE NO AUTHORITY TO AWARD SPECIAL, EXEMPLARY, COMPENSATORY, PUNITIVE OR SIMILAR TYPES OF DAMAGES, AND THE PARTIES WAIVE ANY RIGHT TO RECOVER ANY SUCH DAMAGES. The cost of any such arbitration shall be divided equally between the parties, or in such fashion as the arbitrator may order. Each party shall bear his, her or its own attorneys’ fees, excepting if and to the extent an applicable binding contractual provision of the contract in dispute provides otherwise.

c. The parties shall maintain the confidential nature of the arbitration proceeding and the arbitration award and any confidential information disclosed in the course of the arbitration proceeding, including the hearing, except (where not reasonably possible to take reasonable measures in the interest of preserving confidentiality) as may be necessary to prepare for or conduct the arbitration hearing on the merits, or in connection with a court application for temporary or preliminary injunctive relief (as contemplated by these provisions), or in connection with a judicial challenge to an award or its enforcement, or if disclosure is otherwise required by law or judicial decision. Notwithstanding the governing law of this Agreement, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).

d. Subject to and not in limitation of these provisions, a party may apply to a court of competent jurisdiction, to seek temporary or preliminary injunctive relief in emergent circumstances, only to the extent not within the authority of the arbitrator, where the party would be materially and irreparably harmed in the absence of such relief, in each case in aid of the arbitration between the parties, it being understood that a party may not rely on this provision to circumvent the requirement to arbitrate by simply seeking equitable remedies for claims that are reasonably within the scope of matters agreed by the parties to be arbitrated. A PARTY MAY REQUIRE THAT ANY PROCEEDING BE SUBJECT TO A CONFIDENTIAL PROTECTIVE ORDER REASONABLE UNDER THE CIRCUMSTANCES, TO PROTECT AND PRESERVE THE CONFIDENTIALITY OF CONFIDENTIAL INFORMATION. Customer (together with its Authorized Users acting on its behalf) acknowledges and agrees that a breach or threatened breach by Customer (or its Authorized Users) of any of its obligations with respect to the Services or Provider Materials, would cause Provider (and/or its licensors) irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Provider will be entitled to all available remedies at law and in equity and to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond.

e. Subject to the requirement of arbitration as may be prescribed hereunder, each party hereto consents to the personal jurisdiction of the Federal and State courts sitting in Orange County, California with respect to matters that are not subject to arbitration, permissible relief in aid of arbitration, and enforcement of any order or award of the arbitrator. Each party hereto waives personal service of any and all process upon it, and consents that all services of process be made by registered or certified mail, postage prepaid, directed to it at its address as set forth herein or other last-known address of the party, and service so made shall be deemed to be completed and effective ten (10) days after such mailing. Subject to the foregoing, the parties hereto each waive any objection based on forum non conveniens and waive any objection to venue of any action instituted hereunder. Nothing in this paragraph shall affect the right of the parties hereto to serve legal process in any other manner permitted by law.

11.14 Export Regulation. Customer (together with its Authorized Users acting on its behalf) shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US. Further, Customer (together with its Authorized Users acting on its behalf) shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and Customer shall not export, or allow the export or re-export of the Services in violation of any such restrictions, laws or regulations. By installing or using the Services, Customer (together with its Authorized Users acting on its behalf) agrees to the foregoing and represents and warrants that Customer and Customer Systems are not located in, under the control of, or a national or resident of any restricted country.

11.15 US Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial product” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.

11.16 California Consumer Privacy Act. This Section 11.16 applies for any Customer (together with its Authorized Users acting on its behalf) located in whole or in part in California, doing any business in California, or having any Personal Information of any residents of the State of California.

a. The parties acknowledge and agree that Provider is a service provider for the purposes of the California Consumer Privacy Act, as supplemented by the California Privacy Rights Act (collectively, the “CCPA”) and may receive personal information (as defined by the CCPA) from Customer pursuant to this Agreement for a business purpose. The parties agree to always comply with the applicable provisions of the CCPA in respect to the collection, transmission, and processing of all personal information (as defined by the CCPA) exchanged or shared pursuant to the Agreement or the Services. Provider shall not (i) sell any such personal information; (ii) retain, use or disclose any personal information provided by Customer pursuant to this Agreement except as necessary for the specific purpose of performing the Services for Customer pursuant to this Agreement or as permitted by the CCPA; (iii) retain, use, or disclose such personal information for a commercial purpose other than providing the Services unless otherwise explicitly permitted under the Agreement; (iv) retain, use, or disclose such personal information outside of the direct business relationship between Customer and Provider unless otherwise permitted under theAgreement; or (v) combine any such personal information with personal information that it receives from or on behalf of any other person(s) or collects from its own interaction with the consumer, provided that Provider may combine personal information to perform any business purpose as defined in and as permitted under the CCPA. The terms “personal information,” “service provider,” “sale,” “share,” and “sell” are as defined in Section 1798.140 of the CCPA. Customer is responsible for the lawfulness of any such personal information and the receipt, use, and processing of it under the Agreement. Customer represents and warrants that, where it provides personal information to Provider or requests Provider collect or process such information, it (1) has complied with any applicable laws relating to the collection or provision of such information, (2) possesses any consents, authorizations, rights and authority, and has given all required notices to individual data subjects as are required to transfer or permit Provider to collect, receive, or access any personal information for the Services, and (3) to the extent required by applicable law, informed the individuals of the possibility of Provider processing their personal information on Customer’s behalf and in accordance with its instructions.

b. Each party confirms that it understands the requirements and restrictions of this Section and will notify the other party upon determining that it can no longer meet its obligations under the CCPA. It is Customer’s sole responsibility to notify Provider of any requests from consumers (as defined in the CCPA) seeking to exercise rights afforded in the CCPA regarding personal information received or processed in connection with the Services. Provider agrees to provide reasonable cooperation to Customer in connection with such requests.

11.17 Attorneys' Fees. Each party shall bear its own attorneys’ fees in any action or proceeding between the parties, with the exception that Provider shall be entitled to recover from any other party bound by this Agreement the reasonable attorneys’ fees incurred by Provider in such a proceeding for such other party’s misappropriation or misuse of the Services or Provider Materials or any component thereof.

11.18 Electronic Agreement. An electronic copy or reproduction of this Agreement is deemed to have the same legal effect and shall be enforceable as an original signed copy of this Agreement. This Agreement has been (i) executed by Provider by conformed signature of its authorized officer, (ii) entered into by and/or on behalf of the other parties hereto by electronic or digital means as described herein.

This Agreement is entered into and becomes the valid, binding and effective agreement of Provider, Customer and (as applicable) Authorized Channel Partner as of the Effective Date.

Impelix, LLC

By: /s/ Brian Fernald, CEO