MASTER SUBSCRIPTION AGREEMENT

Last updated April 17, 2023

THIS MASTER SUBSCRIPTION AGREEMENT (“Agreement”) between You, the party subscribing for the Solutions and purchasing the Professional Services hereunder (“You,” “Your” or “Client”), and EmberOT. (“We,” “Us,” “Our” or “EmberOT”). This Agreement covers your permitted download, installation and use of the Solutions. If You do not agree with the terms of this Agreement, you may not download, install, or use the Solutions.

1. SCOPE OF AGREEMENT; DEFINITIONS.
2. ORDER FORMS AND STATEMENTS OF WORK.
3. SUBSCRIPTION.
4. TERM AND TERMINATION.
5. RESTRICTIONS.
6. CLIENT SUPPORT.
7. ORDERS; PROVISIONING; FEES.
8. SOLUTIONS MONITORING; AUDIT.
9. LIMITED WARRANTY.
10. LIMITATION ON LIABILITY.
11. INDEMNIFICATION.
12. CONFIDENTIALITY.
13. MISCELLANEOUS PROVISIONS.

This Agreement covers the (i) Subscription and permitted use of the Solutions, and (ii) access to Client Support and other Professional Services. Unless otherwise defined in this Section 1, the capitalized terms used in this Agreement shall be defined in the context in which they are used. The following terms shall have the following meanings:

1.1. “Authorized User” means Your employee(s) (or other third-party consultants as authorized by You under Section 6.2 of this Agreement) who is authorized by You to access or use the Solutions or access the Client Support in the manner authorized in this Agreement and within the scope identified in an Order Form.

1.2. “Client Content” means any and all proprietary business data relating to Your business, including, without limitation, the content of any data sets, Client feedback forms or compilations and any and all data and information furnished to Us in the course of or incident to performing hereunder, including Sizing and any network, security, user, data and file object information, and operational and historical information.

1.3. “Client Support” means access to EmberOT technical support as identified in Section 6 of this Agreement.

1.4. “Confidential Information” has the meaning set forth in Section 12 of this Agreement.

1.5. “Content” means any presentations, photographs, illustrations, icons, articles, text, audio clips, video clips, or Client Content.

1.6. “Documentation” means the user guides and training materials made available by Us (whether online or in hard copy format) that provide installation and/or operating instructions for use of the Solutions by You.

1.7. “Force Majeure” means an event caused by conditions beyond the reasonable control of such Party including, but not limited to, governmental action, terrorism, war, acts of public enemies, strikes or other labor disturbances, civil or military authority, fires, floods, or other natural calamities, acts of God, telecommunications failure, electrical outages, any service failure or disruption caused by other service providers, or systems, severe network outages in co-location site networks, error in the coding of electronic files or any causes of like or different kind beyond the reasonable control of such Party.

1.8. “Integration Services” means integration services as specified in an Order Form or Integration Services Statement of Work.

1.9. “Law” means all laws, statutes, ordinances, codes, regulations, rules, orders, judgments, rulings, writs, injunctions, court and administrative decrees, and other requirements imposed by any court, administrative agency or commission, franchising or licensing authority or other governmental authority or instrumentality, whether local, state or federal and other pronouncements having the effect of law of any such entity or any other laws or reported decisions of any court thereof, including principles of common law.

1.10. “Order Form” means the document by which You order Subscriptions from Us and includes a description and fee schedule of the applicable Solutions and Professional Services as well as payment terms.

1.11. “Order Term” means the period of time as identified on a fully executed Order Form during which You may use or access the Solutions and Client Support, as applicable.

1.12. “Privacy Restricted Data” means any information regarding identifiable individuals, including aggregate and anonymized information. By way of example, Privacy Restricted Data includes, without limitation, names, addresses, telephone numbers, email addresses, online user names, passport numbers, driver’s license numbers or similar identifiers, Social Security numbers, payment card numbers, passwords, racial or ethnic origin, CPNI, location information, IP addresses or other handset identifiers, financial account information, client or employee account information, credit information or demographic information, physical or mental health information or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act, the Payment Card Industry Data Standards and other regulations, laws or industry standards designed to protect similar information, and any defined under European Union data protection laws as “Sensitive Personal Data.”

1.13. “Professional Services” means the services that we will provide to You, pursuant to an Order Form, and may include, as applicable, Implementation Services, Integration Services, and other professional services.

1.14. “Scheduled Maintenance” means downtime to the Solutions during which We perform upgrades, bug fixes, or other systems servicing to the Solutions or data center environment.

1.15. “Sizing” means the size, capacity, and quantity of the equipment, machines, virtual machines, devices, or environment being monitored by the Solutions or other licensing limitations set forth on the Order Form.

1.16. “Solutions” means the program modules and features of Our proprietary software that We will provide to You, pursuant to an Order Form, and all updates, improvements, bug fixes, or other modifications that We provide to You in accordance with this Agreement.

1.17. “Statement of Work” (SOW) is the document that describes the activities and deliverables to be provided by Our Professional Services team, and Our responsibilities and Your responsibilities under that document. The Initial Statement of Work, if applicable, is attached as Exhibit B to this Agreement.

1.18. “Subscription” means Your right to access and use the Solutions, access to the Documentation and Client Support.

1.19. “Term” shall have the meaning set forth in Section 4 of this Agreement.

1.20. “Trial Access” means free, trial or evaluation access to the Solutions, Documentation, and Client Support as specified in an Order Form.

During the Term, the Parties may execute one or more Order Forms for You to order Subscriptions from Us and one or more Statements of Work for You to order Professional Services. We agree to provide the Subscription and the Professional Services to You under the terms of this Agreement pursuant to one or more Order Forms and Statements of Work (as applicable). The Parties shall negotiate and sign each Order Form separately. Each Order Form shall set out a description and fee schedule of the applicable Solutions and Professional Services, payment terms, and any other additional terms that are agreed to by the Parties. Each Order Form and Statement of Work shall be attached to this Agreement and incorporated in this Agreement by reference. Exhibit A to this Agreement sets forth the initial Order Form and Exhibit B to this Agreement sets forth the initial Statement of Work, if applicable. In the event of any conflict between the provisions of this Agreement and the terms of any Order Form(s) and/or Statement(s) of Work, the conflict shall be resolved in the following order of priority of interpretation: (a) the Order Form(s); (b) the Statement(s) of Work; and (c) this Agreement. You agree that the validity of any Order Form(s) or Statement(s) of Work is not contingent on the delivery of any future functionality or features.

3.1. Scope. Subject to the terms and conditions of this Agreement and in consideration for the payment of the applicable fees included in the Order Form, as part of a Subscription, We hereby grant to You, solely during the Order Term, a limited, non-exclusive, non-transferable Subscription to access and use the Solutions, as applicable, as well as any Documentation, solely for your internal business use within the scope defined on an Order Form and in accordance with the Documentation.

3.2. Ownership of IP. You acknowledge and agree that, as between the Parties, the Solutions (including any upgrades, updates, or any modifications thereto and derivative works and/or new versions thereof), the Documentation, and all computer programs, related documentation in whatever form, screen displays, images and other information contained therein or related thereto, and all worldwide intellectual property rights, including without limitation, copyrights, trademarks, service marks, trade secrets, know-how, inventions, patents, patent applications, moral rights and all other proprietary rights, whether registered or unregistered, and all other rights with respect thereto, are and shall remain the exclusive property of EmberOT, and that no rights therein or thereto are granted or otherwise transferred under this Agreement except as expressly set forth herein. Client shall exclusively retain all rights, title, interest, and ownership in and to all Client Content. All rights not specifically granted hereunder are reserved to EmberOT. All trademarks and service marks not owned by EmberOT are marks of their respective providers.

3.3. We reserve the right to charge an additional fee for add-in modules and for new version releases or upgrades that contain substantial additional functionality or substantially improved performance. These types of major version releases that include an additional fee will not be mandatory and are optional for You and not be considered bug fixes or other modifications or updates to other Solutions that may have been licensed by You.

3.4. Client Content; Use of and Access to Information.

(a) If, in the process of using the Solutions You, or any Authorized User, uploads, records, or otherwise transmits any Content to Us, then You represent and warrant to Us that You: (a) are the owner or authorized user of the Content; (b) are solely responsible for the Content; and (c) acknowledge and agree that We neither control nor guarantee the accuracy, integrity or quality of the Content. You further agree that You will not use the Solutions or upload, record, or otherwise transmit any Content that: (i) infringes any third party’s copyright, patent, trademark, trade secret, or other proprietary rights or rights of publicity or privacy; (ii) violates any Law; (iii) is defamatory, trade libelous, threatening, harassing, obscene, harmful, or pornographic; (iv) contains any viruses or other solutions that are intended to damage or interfere with (or surreptitiously intercept or capture) any system, data or personal information; or (v) contains any Privacy Restricted Data. Because You and any Authorized Users will be in control of the Content displayed online as a part of the use of the Solutions, You understand that by utilizing the Solutions users may be exposed to Content that is improper, offensive, or a violation of the Law and therefore, under no circumstances will We be liable to any person or entity for any alleged damages sustained by the distribution of the Content to any user. Should You or an Authorized User submit technical support questions, comments, feedback, or suggestions to Us, then You agree that We may edit and post those questions, comments, feedback, or suggestions with the response, (without revealing personal information), on Our support website and that all such questions, comments, feedback, and suggestions shall remain Our property.

(b) You authorize Us to use the Solutions to access and review Client Content for Our business purposes, including but not limited to, auditing purposes, analytics purposes, bug fixes, creating reports for You, and operating, maintaining, and improving Our products and services. This includes the use of aggregated, de-identified Client Content for statistical purposes, including, but not limited to, maintenance, reporting, analysis, fraud prevention, and/or general reports provided that We agree to not use such data in a manner that could lead to the identification of You. You agree that any products, algorithms, reports, or derivative works from this aggregated, de-identified data are Our sole property.

(c) Each Party will comply with the obligations applicable to it under applicable data protection laws. Except as otherwise provided under this Agreement, We shall not sell, process, retain, disclose, or use any Client Content for a commercial purpose or outside of the direct business relationship between the Parties.

(d) Upon termination of this Agreement, all Client Content will be available, in a standard format, for electronic retrieval for a period of thirty (30) days. If You request in writing before the end of the Term, We may assist You in exporting Client Content in alternative formats. You agree to reimburse Us for any non-trivial engineering services at commercially reasonable hourly rates.

4.1. The term (“Term”) of this Agreement will begin on the Effective Date and shall continue until twelve (12) months after the expiration date of the most recent Order Form.

4.2. This Agreement and any outstanding Order Forms may be terminated (a) by either Party if the other Party has breached a material obligation hereunder and has failed to cure such breach within thirty (30) days of receiving notice thereof; (b) by either Party, immediately, if any proceeding is commenced by, for or against either Party under any bankruptcy, insolvency or debtor’s relief law for the purpose of seeking a reorganization of such Party’s debts, and such proceeding is not dismissed within ninety (90) days of its commencement; or (c) by You by providing ninety (90) days’ notice for any reason, provided however that unless the Agreement or Order Form is terminated as a result of Our uncured breach, Your payment obligations under the Order Form shall not be modified and You shall not be entitled to any refund or credit.

4.3. At the expiration of each Order Term, the Order Term for a Subscription shall automatically renew for the same period of time as the initial Order Term unless either Party notifies the other Party of its intention not to renew at least ninety (90) days before the end of the applicable Order Term. In the event of any renewal under this Section, Our then-current fees and policies shall apply but in no event shall the increase be greater than four percent (4%) of the applicable fee charged for the Solution or Professional Service as calculated during each year of the applicable Order Term.

4.4. Upon expiration or termination of this Agreement for any reason, or at the expiration of an Order Term where the Order Term was not renewed, (a) all Subscriptions and rights granted hereunder shall cease; (b) You shall immediately (i) cease (and shall cause all Authorized Users to immediately cease) all use of the Solutions, Client Support and Documentation; and; (ii) return to or destroy, at Our sole option and request, all tangible materials and all copies thereof, in whatever media, then in Your possession or control, containing or embodying any of Our Confidential Information; and
(c) each Party shall take such other actions as the disclosing Party may reasonably request to ensure that no Confidential Information remains in the receiving Party’s or any of its Authorized Users’ possession or control and shall, at the disclosing Party’s request, deliver to the disclosing Party a written certificate of compliance with this Section, which certificate shall be reasonably satisfactory to the disclosing Party; and (d) any undisputed fees owed by You to Us hereunder shall become immediately due and payable to Us.

5.1. You agree that you will use the Solutions only in compliance with Our standard published policies then in effect, the Documentation, and all applicable laws and regulations. You shall be responsible for maintaining the security of Your accounts, passwords (including but not limited to administrative and user passwords), and files, and for all uses of Your accounts with or without Your knowledge or consent.

5.2. You can access and use the Solutions, and Client Support solely for Your internal use as permitted hereunder. You and each Authorized User may not access, distribute or use the Solutions, or Client Support except as expressly permitted under this Agreement, or the terms of the Order Form, including the requirements provided by applicable intellectual property laws and copyright laws. You and any Authorized User shall not, nor shall You or they permit others to do any of the following: (a) rent, license, sublicense, sell, lease, assign, transfer, distribute, host, outsource, disclose or otherwise commercially exploit the Solutions or make the Solutions available, in any form, to any third party not authorized by this Agreement, including for the purpose of building a similar or competitive product or service; (b) copy, reproduce, create derivative works from, de-compile, disassemble or otherwise reverse-engineer the Solutions or in any other way alter, translate, modify, unbundle or adapt the Solutions; (c) remove any proprietary notices, labels, or marks on or in any copy of the Solutions or any product in which the Solutions is embedded; (d) republish, download, display, post or transmit in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording or other means, any part of the Solutions; (e) use the Solutions to process data or provide analytical services to any third party, including disclosure the results of testing or benchmarking of the Solutions, other than Your internal use; or (f) use the Solutions to collect, manage or process any Privacy Restricted Data. Any access to or use of the Solutions (or any part thereof), or Client Support by persons or other users who are not Authorized Users and this Agreement is specifically prohibited.

5.3. You may allow your third-party consultants to access and use the Solutions, and Client Support as Authorized Users solely for Your internal use permitted hereunder, provided that (a) such third-party consultant has signed an agreement with You protecting Our intellectual property rights with terms no less stringent than the terms and conditions contained in this Agreement; and (b) You ensure that such third-party consultant access to and use of the Solutions, and Client Support complies with the terms of this Agreement. If the Solution You have ordered requires Us to communicate, directly or indirectly with Your customer, You acknowledge and agree that You have obtained all necessary consents from the applicable recipients of such communications to permit Us to communicate with such individuals via SMS, electronic mail or other direct communications, on Your behalf.

5.4. Export Compliance. You agree to comply with U.S., foreign, and international laws and regulations, including without limitation the U.S. Foreign Corrupt Practices Act, U.K. Bribery Act, other anti-corruption laws, U.S. Export Administration and the Treasury Department’s Office of Foreign Assets Control regulations, and other anti-boycott and import regulations. You represent and warrant that You are neither a Prohibited Person nor owned or controlled by a Prohibited Person. “Prohibited Persons” shall mean a person or entity appearing on the lists published by the U.S. Department of Commerce, the U.S. Department of State, the U.S. Department of Treasury, or any other list that may be published by the U.S. Government, as amended from time to time, that is prohibited from acquiring ownership or control of items under this Agreement, or with which We are prohibited from doing business.

5.5. Trial Access. If We have made available to You Trial Access, You may use such access solely to evaluate the purchase of a Subscription. Notwithstanding any other provision of this Agreement, the Trial Access is provided “AS IS” without warranty or support of any kind, express or implied, or indemnification. We may terminate Your Trial Access at any time for any reason and without liability of any kind.

During an Order Term, as part of a Subscription to the Solutions, We will provide You with access to Client Support for the Solutions in accordance with the Order Form and Our then-current Client Support. Your access to Client Support expires at the end of an Order Term. Client Support is limited to technical support directly related to the use of the Solutions included on the applicable Order Form. We will, during the hours of 8:00 a.m. to 8:00 p.m. (ET) on weekdays (exclusive of holidays), make reasonable telephone or email-based technical support available to Your personnel. When Our staff is unavailable, We will provide voice mail and email access that will be checked periodically. All support requests will be prioritized according to the severity of the support request, as We determine at Our discretion. The Client Support hours and policies are subject to change at Our option. You will appoint up to three people as Your authorized Client Support contacts who must complete training on the operation and maintenance of the Solutions as We specify. Client Support may be provided remotely via telephone or web-based services or, at Your request, may be provided in person. Travel costs are not included in the fees identified on an Order Form and You will be responsible for reimbursing Us for the costs of any travel You request associated with delivering Client Support.

7.1. You shall pay all fees specified in an Order Form. Except as otherwise specified herein, or in an Order Form, all fees are (i) based on the Subscription ordered and not actual usage, and (ii) payment obligations are non-cancellable and non-refundable except in the case of Our uncured breach. If Your usage of the Solutions is more than the Sizing set forth in the Order Form, We will contact You so You can determine if You want to enter into another Order Form to be able to utilize the increased Sizing. We will invoice You for those overages, based on Our then-current standard pricing unless otherwise specifically provided in the applicable Order Form. This Agreement may accommodate multiple Order Forms and Statements of Work, each of which shall be incorporated into and become a part of this Agreement upon acceptance by You and Us. The duration and type of Subscription provided to You shall also be identified on the Order Form.

7.2. Unless agreed to otherwise in an Order Form, We will issue an invoice for all fees due under this Agreement annually in advance, and, upon renewal, the fees shall be due and payable at least thirty (30) days before the anniversary of the Effective Date. You agree to pay undisputed invoices within thirty (30) days after the date of Our invoice unless otherwise specified in an Order Form.

7.3. You agree to reimburse Us for the reasonable travel expenses that You request. You also agree to reimburse Us for any fees or charges incurred due to the cancellation of any travel requested by You within thirty (30) days of the agreed-upon travel date.

7.4. With respect to any past due payments not reasonably in dispute, We reserve the right to charge You and, if assessed, You agree to pay, a late fee equal to the lesser of one and one-half percent (1.5%) per month or the greatest amount permitted by law for each month or partial month such undisputed amount remains outstanding.

7.5. Each party agrees to pay or reimburse all fees and expenses reasonably incurred by the other party in enforcing this Agreement and collecting any amounts due under this Agreement, including, but not limited to, all reasonable attorneys’ fees and all expenses associated therewith.

7.6. You shall be solely responsible and liable for any and all applicable federal, state, and/or local sales, use, or similar taxes (other than taxes based on Our net income) in connection with
(a) the Solutions (b) Client Support, (c) receiving any Professional Services, including Integration Services, Implementation Services, and other services, unless You furnish satisfactory proof of exemption.

We may monitor all use of the Solutions for security and operational purposes. We may suspend Your access to the Solutions in the event that You are engaged in, or We in good faith believe You are engaged in or are supporting, any unauthorized conduct (including any violation of this Agreement, any applicable law, or third party right). We will use diligent efforts to promptly contact You prior to or contemporaneously with such suspension; provided, however, that Our exercise of the suspension rights herein shall not be conditioned upon Your receipt of any notification. A suspension may take effect for Your entire account and You understand that such suspension would therefore include affiliate and/or user sub-accounts. You agree that We will not be liable to You or any affiliate or user or any other third party if We exercise Our suspension rights as permitted by this Section.

We or our designated representative will have the right, exercisable on reasonable notice, to conduct an inspection and audit of such records and Your premises and systems, and to obtain such other information as necessary to determine Your compliance with this Agreement. Such audit will be conducted at a mutually agreeable time in such a manner as not to interfere unreasonably with Your normal business activities. In no event will such audits be conducted more frequently than once every twelve (12) months unless an earlier audit uncovered an underpayment greater than one percent (1%) of the fees due and payable with respect to the period audited. You will promptly pay any fees revealed by the audit to be due and payable. We will pay any fees charged by Our designated representative, if any; provided that if any audit reveals an underpayment of fees greater than five (5%) percent of the fees due and payable with respect to the period audited, You will promptly reimburse Us for any such audit fees.

9.1. We warrant that the Solutions will substantially conform to the functionality described in the then-current Documentation for the Solutions for a period of thirty (30) days from the download or first access (as applicable) (the “Warranty Period”). Your sole and exclusive remedy and Our sole and exclusive liability for a breach of the foregoing warranty shall be, at Our option, either (i) terminate the applicable Order Form upon providing You with written notice thereof and refund to You any prepaid fees with respect to the expired portion of the current Order Term or (ii) use Our commercially reasonable efforts to repair or replace the Solutions to conform in all material respects to the applicable Documentation.

9.2. OTHER THAN THE FOREGOING LIMITED WARRANTY, WE MAKE NO WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, TO YOU, THE AUTHORIZED USERS, OR ANY OTHER PARTY, FOR THE SOLUTIONS, DOCUMENTATION, CLIENT SUPPORT, OR PROFESSIONAL SERVICES, AND ALL WARRANTIES ARE HEREBY DISCLAIMED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR OTHER WARRANTIES FOR NON-INFRINGEMENT, SATISFACTORY QUALITY, OR AGAINST LATENT DEFECTS. YOU ACKNOWLEDGE AND AGREE THAT THE SOLUTIONS, DOCUMENTATION, CLIENT SUPPORT, AND PROFESSIONAL SERVICES, AS APPLICABLE, ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH NO WARRANTY WHATSOEVER. WE SPECIFICALLY DENY ANY IMPLIED OR EXPRESS WARRANTY THAT THE SOLUTIONS WILL MEET YOUR REQUIREMENTS, WILL OPERATE UNINTERRUPTED OR ERROR-FREE, AND FOR THE ACCURACY OR COMPLETENESS OF ANY DATA OR CONTENT PROVIDED BY EMBEROT OR OTHERS NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SOLUTIONS. NO ORAL OR WRITTEN INFORMATION OR ADVICE WE GIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SOLUTIONS, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO THE WARRANTY PERIOD. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY.

9.3. The limited warranty described in Section 9.1 does not apply if the Solutions, product, or any other equipment upon which the Solutions is authorized to be used (a) has been altered, except by Us or Our authorized representative, (b) has not been installed, operated, repaired, or maintained in accordance with the Documentation, (c) has been subjected to abnormal physical or electrical stress, abnormal environmental conditions, misuse, negligence, or accident; (d) is licensed for beta, evaluation, testing or demonstration purposes; (e) is a temporary Solutions module; or (f) was not obtained directly from Us.

9.4. YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL COMPUTERS AND OTHER EQUIPMENT NEEDED TO ACCESS AND USE THE SOLUTIONS. YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR VERIFYING THE ACCURACY AND ADEQUACY OF ANY OUTPUT FROM THE SOLUTIONS OR THE INFORMATION CONTAINED IN ANY REPORT, AND FOR ANY RELIANCE OR DECISION THEREON.

NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT IN THE CASE OF A PARTY’S WILLFUL VIOLATION OF LAW OR FRAUD, IN NO EVENT SHALL EITHER PARTY, THEIR AFFILIATES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY FOR LOSS OR INACCURACY OF DATA OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR FOR ANY INCIDENTAL, SPECIAL, ENHANCED, INDIRECT OR CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUE AND LOSS OF PROFITS, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY THEREOF. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER UNDER THIS AGREEMENT OR ANY ORDER FORM OR STATEMENT OF WORK FROM ANY OR ALL CLAIMS OR CAUSES EXCEED THE AMOUNT OF THE AGGREGATE FEES RECEIVED BY US FROM YOU FOR THE TWELVE (12) MONTH PERIOD PRECEDING THE OCCURRENCE OF THE LAST EVENT GIVING RISE TO LIABILITY. NOTWITHSTANDING THE FOREGOING, OUR ENTIRE LIABILITY UNDER THIS AGREEMENT RELATED TO TRIAL ACCESS SHALL BE $500. MULTIPLE CLAIMS SHALL NOT EXPAND THESE LIMITATIONS. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY IN THE AGGREGATE AND WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.

The Parties acknowledge and agree that the disclaimers, exclusions, and limitations of liability set forth in this Section form an essential basis of this Agreement and that, absent any of such disclaimers, exclusions, or limitations of liability, the terms of this Agreement, including, without limitation, the economic terms, would be substantially different.

11.1. Indemnification. Each party agrees to indemnify, defend, and forever hold the other party (including each of their respective members, partners, directors, officers, employees, stockholders, agents, successors, and assigns) (collectively, “Indemnitees”) harmless from and against any and all losses, liabilities, claims, costs, damages and reasonable expenses, including fines, forfeitures, penalties, reasonable attorneys’ fees, disbursements, and court or administrative costs (collectively, “Liabilities”) incurred as a result of a third-party claim that arises out of or in connection with (i) that party’s breach of any of its warranties, covenants or representations in this Agreement or (ii) that party’s breach of Section 12 (Confidentiality). Further, the parties agree that these indemnification obligations will also apply with regard to Your breach of Section 5 (Restrictions) or in the case of an IP Exception (as defined below). In addition, We agree that these indemnification obligations will apply with respect to third-party claims that the Solutions infringe any U.S. patent, copyright, trademark, or trade secret (an “Infringement Claim”). In the event an Infringement Claim is made or threatened, We may, at Our option (i) secure for You the right to continue to use the Solutions; (ii) modify or replace the Solutions so they are non-infringing while retaining substantially equivalent functionality; or (iii) if neither of the foregoing options is available on a commercially reasonable basis, terminate this Agreement. THIS PARAGRAPH STATES OUR ENTIRE OBLIGATION AND LIABILITY, AND YOUR EXCLUSIVE REMEDY, FOR ANY INFRINGEMENT CLAIM.

11.2. The parties’ respective indemnification obligations are dependent on the party seeking indemnification (the “Indemnified Party”) (a) promptly notifying the other party (the “Indemnifying Party”) in writing of any such suit or proceeding; provided, however, that any failure to promptly provide such notice shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that such delay has actually and materially prejudiced the Indemnifying Party’s ability to defend such suit or proceeding; (b) providing the Indemnifying Party with control over the defense or settlement of any such claim or action (except that the Indemnifying Party shall not, without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, settle any claim that imposes any (1) equitable remedy against an Indemnitee, (2) financial obligation for which any Indemnitee is not otherwise indemnified hereunder, or (3) any other liability or obligation which could be reasonably expected to have a material adverse effect upon the Indemnified Party’s business, reputation or prospects; and (c) providing the Indemnifying Party with reasonable information and assistance, at the Indemnifying Party’s cost and expense, in the defense or settlement of any such claim or action. The Indemnified Party may participate in any such suit or proceeding through counsel of its choice at its own expense, provided that the costs associated with its counsel shall not be deemed damages or costs for purposes of the Indemnifying Party’s indemnity hereunder.

11.3. We will have no liability to You if any alleged infringement or claim, suit, or proceeding thereof arises from (i) use of the Solutions, or the Documentation in any manner not contemplated by this Agreement, (ii) use of other than the most current version of the Solutions or the Documentation as provided by Us if such alleged infringement would have been prevented by the use of the most current version of the Solutions or the Documentation, (iii) any combination of the Solutions or Documentation with any intellectual property, resources, equipment, or processes not provided by Us, or (iv) modifications of the Solutions or the Documentation provided by other than Us (each an “IP Exception”).

Each party agrees to indemnify, defend, and forever hold the other party (including each of their respective members, partners, directors, officers, employees, stockholders, agents, successors, and assigns) (collectively, “Indemnitees”) harmless from and against any and all losses, liabilities, claims, costs, damages and reasonable expenses, including fines, forfeitures, penalties, reasonable attorneys’ fees, disbursements, and court or administrative costs (collectively, “Liabilities”) incurred as a result of a third-party claim that arises out of or in connection with (i) that party’s breach of any of its warranties, covenants or representations in this Agreement or (ii) that party’s breach of Section 12 (Confidentiality). Further, the parties agree that these indemnification obligations will also apply with regard to Your breach of Section 5 (Restrictions) or in the case of an IP Exception (as defined below). In addition, We agree that these indemnification obligations will apply with respect to third-party claims that the Solutions infringe any U.S. patent, copyright, trademark, or trade secret (an “Infringement Claim”). In the event an Infringement Claim is made or threatened, We may, at Our option (i) secure for You the right to continue to use the Solutions; (ii) modify or replace the Solutions so they are non-infringing while retaining substantially equivalent functionality; or (iii) if neither of the foregoing options is available on a commercially reasonable basis, terminate this Agreement. THIS PARAGRAPH STATES OUR ENTIRE OBLIGATION AND LIABILITY, AND YOUR EXCLUSIVE REMEDY, FOR ANY INFRINGEMENT CLAIM.

11.2. The parties’ respective indemnification obligations are dependent on the party seeking indemnification (the “Indemnified Party”) (a) promptly notifying the other party (the “Indemnifying Party”) in writing of any such suit or proceeding; provided, however, that any failure to promptly provide such notice shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that such delay has actually and materially prejudiced the Indemnifying Party’s ability to defend such suit or proceeding; (b) providing the Indemnifying Party with control over the defense or settlement of any such claim or action (except that the Indemnifying Party shall not, without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, settle any claim that imposes any (1) equitable remedy against an Indemnitee, (2) financial obligation for which any Indemnitee is not otherwise indemnified hereunder, or (3) any other liability or obligation which could be reasonably expected to have a material adverse effect upon the Indemnified Party’s business, reputation or prospects; and (c) providing the Indemnifying Party with reasonable information and assistance, at the Indemnifying Party’s cost and expense, in the defense or settlement of any such claim or action. The Indemnified Party may participate in any such suit or proceeding through counsel of its choice at its own expense, provided that the costs associated with its counsel shall not be deemed damages or costs for purposes of the Indemnifying Party’s indemnity hereunder.

11.3. We will have no liability to You if any alleged infringement or claim, suit, or proceeding thereof arises from (i) use of the Solutions, or the Documentation in any manner not contemplated by this Agreement, (ii) use of other than the most current version of the Solutions or the Documentation as provided by Us if such alleged infringement would have been prevented by the use of the most current version of the Solutions or the Documentation, (iii) any combination of the Solutions or Documentation with any intellectual property, resources, equipment, or processes not provided by Us, or (iv) modifications of the Solutions or the Documentation provided by other than Us (each an “IP Exception”).

12.1. Confidential Information. You acknowledge and agree that the Solutions, Documentation, Client Support, Professional Services, , and other related data, information, or materials constitute confidential, proprietary, and valuable trade secret information belonging exclusively to Us (the “Confidential Information”). We acknowledge and agree that data that You provide Us which is marked Confidential will be treated as Confidential Information under the terms of this Agreement and We may only disclose your Confidential Information to our affiliates and subcontractors as necessary to perform our obligations under this Agreement. You grant Us the right to use Your name and logo as Our customer in Our public communications. This includes, but is not limited to, a list of Our customers, on Our website, in marketing materials, in advertising, and in case studies. We agree that any such use shall be subject to Our compliance with any written guidelines that You may deliver to Us regarding the use of Your name and logo and shall not be deemed Your endorsement of the Solutions. Upon execution of this Agreement, You grant Us the right to issue a press release within sixty (60) days announcing Your selection of EmberOT.

12.2. Obligations. During the Term of this Agreement and after its termination or expiration, each Party shall hold the Confidential Information of the other Party in strictest confidence and shall not disclose it (or authorize third parties to disclose it) to any third party without the prior written consent of the other Party or as otherwise permitted under this Agreement. Each Party also agrees to use commercially reasonable efforts to protect one another’s Confidential Information. Each Party may use any Confidential Information only as expressly permitted herein. Each Party shall be fully and directly responsible and liable to the other Party for any breach of this Section 12 by its employees, any Authorized User, or any other third party receiving access to any Confidential Information through or on behalf of such Party and/or its employees.

12.3. Exclusions. “Confidential Information” shall not include information which such Party can document (a) is publicly known through lawful means; (b) was rightfully in the possession of or independently developed by such Party at the time of disclosure thereof by the other Party; (c) is disclosed to such Party without confidential or proprietary restriction by a third party who rightfully possesses the information (without confidential or proprietary restriction) and did not learn of it, directly or indirectly, from the other Party or (d) is required to be disclosed by law, a court order or competent government authority, provided that in such case the receiving Party shall promptly inform the disclosing Party of such requirement and shall cooperate with the disclosing Party to allow such Party to obtain a protective order.

12.4. Equitable Relief. Upon any breach of this Section 12 or threat thereof, the Party whose Confidential Information is at issue shall be entitled as a matter of right without proof of actual damages, to seek injunctive and other equitable relief, in addition to any other remedies available to it at law or hereunder.

13.1. Notices. All notices relating to this Agreement shall be in writing, signed by the Party giving or making such notice or communication, and shall be delivered by: (a) personal delivery; (b) certified or registered mail, return receipt requested; (c) recognized overnight courier service; or (d) by electronic transmission. Notices shall be sent to the address of the other Party set forth in the Order Form, or such other address as either Party may specify in writing in accordance with this Section and shall be deemed given upon personal delivery, or upon confirmation of delivery if delivered by certified or registered mail or recognized overnight courier service or upon acknowledgment of electronic transmission. In the case of notice to EmberOT, the notice shall be sent to the attention of EmberOT’s Chief Executive Officer, with a copy to its General Counsel.

13.2. Assignment. Neither Party may assign this Agreement without the express written consent of the other Party. Notwithstanding the foregoing, either Party may assign its rights or delegate its obligations without such consent to an entity that acquires all or substantially all of the business or assets of such party to which this Agreement pertains, whether by merger, reorganization, acquisition, sale, or otherwise. The Agreement, including both its obligations and benefits, shall inure to the benefit of and be binding upon the Parties and their respective successors, transferees, and assigns.

13.3. Survival of Certain Provisions. Sections 1, 3, 4.4, 5, 7, 9, 10, 11, 12, and 13 hereof shall survive termination or expiration of this Agreement.

13.4. Choice of Law. The Agreement shall be construed in accordance with the laws of the State of Delaware, applicable to contracts entered into and to be performed therein without regard to principles of conflict of laws. Each of the Parties agrees that in no event will this Agreement be governed by the U.N. Convention on Contracts for the International Sale of Goods.

13.5. Force Majeure. The failure of either Party to perform any obligation otherwise due (other than the obligation to pay any fee) as a result of an event of Force Majeure is excused for so long as said cause exists.

13.6. Construction. EmberOT and Client each acknowledge and agree that the Agreement was fully negotiated by the Parties and, therefore, no provision of the Agreement shall be interpreted against any Party because such Party or its legal representative drafted such provision.

13.7. Amendment; Waiver. No amendment or modification of this Agreement shall be valid or binding upon the Parties unless in writing and signed by an authorized officer of each Party. No failure or delay on the part of either Party in the exercise of any right or privilege hereunder shall operate as a waiver thereof of the exercise of any other right or privilege hereunder, nor shall any single or partial exercise of any such right or privilege preclude other or further exercise thereof or of any other right or privilege.

13.8. Severability. If any provision of this Agreement is held to be ineffective, unenforceable, or illegal for any reason, such decision shall not affect the validity or enforceability of any or all of the remaining portions thereof.

13.9. Entire Agreement. This Agreement, and the applicable exhibits, constitute the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements, proposals, and understandings, whether written or oral, between the parties with respect to such subject matter. The terms and conditions of this Agreement shall prevail regardless of any preprinted or conflicting terms on a Client’s purchase order; any preprinted or conflicting terms shall be null and void unless expressly stated on an Order Form.

13.10. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. This Agreement may be executed by facsimile or scanned signatures. This Agreement may also be executed and delivered by PDF or any electronic signature complying with the U.S. federal ESIGN Act of 2000 (e.g., www.docusign.com).

13.11. Relationship of Parties. Each of the parties is an independent contractor and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between them. Neither Party will have the power to bind the other or incur obligations on the other’s behalf.

Proprietary and Confidential. This document, and the information contained therein, shall not be duplicated, used or disclosed, in whole or in part, for any purpose other than your internal use without the prior written consent of EmberOT.