STRIIM, INC. END USER LICENSE AGREEMENT STRIIM, INC. END USER LICENSE AGREEMENT IMPORTANT: Please read this End User License Agreement (“Agreement”) before clicking the “accept” button, installing, configuring and/or using the Software (as defined below) that accompanies or is provided in connection with this Agreement. By clicking the “Accept” button, installing, configuring and/or using the Software, you and the entity that you represent (“Customer”) agree to be bound by this Agreement with Striim, Inc. (“Striim”). You represent and warrant that you have the authority to bind such entity to these terms. If Customer does not unconditionally agree to all of the terms of this Agreement, use of the Software is strictly prohibited. To the extent Customer has separately entered into an End User License Agreement with Striim covering the same Software, the terms and conditions of such End User License Agreement shall supersede this Agreement in its entirety. This Agreement includes and incorporates by reference the following documents: Standard Terms and Conditions http://www.striim.com/azure-support/ The Agreement includes the documents listed above and states the entire agreement between the parties regarding its subject matter and supersedes all prior and contemporaneous agreements, terms sheets, letters of intent, understandings, and communications, whether written or oral. All amounts paid by Customer under this Agreement shall be non-refundable and non-recoupable, unless otherwise provided herein. Any marketing collateral, quotes, or other similar written purchase authorization that add to, or conflict with or contradict, any provisions in the Agreement will have no legal effect. The provisions of this Agreement may be amended or waived only by a written document signed by both parties. STANDARD TERMS AND CONDITIONS 1. Definitions 1.1 “CPU” means a single central processing unit of a Customer system, with one or more Cores. 1.2 “Core” means each of the independent processor components within a single CPU. 1.3 “Customer” means that person or entity listed in connection with the purchase of the Software from the Microsoft Azure Marketplace. 1.4 “Documentation” means the standard end-user technical documentation, specifications, materials and other information Striim supplies in electronic format with the Software or makes available electronically. Advertising and marketing materials are not Documentation. 1.5 “Effective Date” means the date Customer purchases the Software through the Microsoft Azure Marketplace. 1.6 “Intellectual Property Rights” means copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contractual rights of non-disclosure or any other intellectual property or proprietary rights, however arising, throughout the world. 1.7 “Software” means the software that is encompassed within the Striim Solution Set that Customer purchased through the Microsoft Azure Marketplace for the number of Cores purchased. 1.8 “Sources and Targets” means the source and target systems of the data being analyzed as defined within the scope of the Striim Solution Set that you purchased through the Microsoft Azure Marketplace. 1.9 “Support Services” means the services as defined in the support policy set forth at http://www.striim.com/azure-support/ that correspond to the Software purchased by Customer on the Microsoft Azure Marketplace. 1.10 “Use” means to execute within the Microsoft Azure Cloud any machine-executable portion of the Software in accordance with the Documentation or to make use of any Documentation, or related materials in connection with the execution of any machine-executable portion of the Software in the Microsoft Azure Cloud. 1.11 “User” means an employee of Customer or independent contractor to Customer who is working for Customer and has been authorized by Customer to Use the Software. 2. Grant And Scope Of License 2.1 Software License. Subject to the terms and conditions of this Agreement, Striim hereby grants Customer a non-exclusive, non-transferable (except as provided under Section 12.6), non-sublicensable monthly subscription license for Users to execute and Use the Software solely as hosted by and within the Microsoft Azure environment, and use the Documentation, solely for Customer’s own internal business purposes. Customer shall be solely responsible for all acts or omissions of its affiliates and any breach of this Agreement by an affiliate of Customer shall be deemed a breach by Customer. 2.2 License Restrictions. Customer shall not: (a) Use the Software except as expressly permitted under Section 2.1; (b) separate the component programs of the Software for use on different computers; (c) adapt, alter, publicly display, publicly perform, translate, create derivative works of, or otherwise modify the Software; (d) sublicense, lease, rent, loan, or distribute the Software to any third party; (e) transfer the Software to any third party (except as provided under Section 12.6); (f) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code for the Software, except as permitted by applicable law; (g) remove, alter or obscure any proprietary notices on the Software or Documentation; (h) allow third parties to access or use the Software, including any use in any application service provider environment, service bureau, or time-sharing arrangements; or (i) use the Software (other than Striim agents) in an environment other than Microsoft Azure Cloud. Customer is restricted to the sources and targets comprised within the Striim Solution Set purchased through the Microsoft Azure Marketplace. No portion of the Software may be duplicated by Customer, except as otherwise expressly authorized in writing by Striim. 3. Proprietary Rights. Customer acknowledges and agrees that the Software, including its sequence, structure, organization, source code and Documentation contains valuable Intellectual Property Rights of Striim and its suppliers. The Software and Documentation are licensed and not sold to Customer, and no title or ownership to such Software, Documentation, or the Intellectual Property Rights embodied therein passes as a result of this Agreement or any act pursuant to this Agreement. The Software, Documentation, and all Intellectual Property Rights therein are the exclusive property of Striim and its suppliers, and all rights in and to the Software and Documentation not expressly granted to Customer in this Agreement are reserved. Striim owns all rights, title, and interest to the Software and Documentation. Nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, a license under any existing or future patents of Striim, except to the extent necessary for Customer to Use the Software and Documentation as expressly permitted under this Agreement. 4. Confidentiality 4.1 Confidential Information. Each party (the “Disclosing Party”) may during the term of this Agreement disclose to the other party (the “Receiving Party”) non-public information regarding the Disclosing Party’s business, including technical, marketing, financial, employee, planning, and other confidential or proprietary information, that (1) if in tangible form, is clearly marked at the time of disclosure as being confidential, or (2) if disclosed orally or visually, is designated at the time of disclosure as confidential, or (3) is reasonably understood to be confidential or proprietary information, whether or not marked. (“Confidential Information”). Without limiting the generality of the foregoing, the Software and the Documentation constitute Striim’s Confidential Information and Customer Data constitutes Customer's Confidential Information. 4.2 Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. 4.3 Exceptions. The Receiving Party’s obligations under Section 4.2 with respect to Confidential Information of the Disclosing Party will terminate to the extent such information: (a) was already known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order or a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. 4.4 Return of Confidential Information. The Receiving Party will either return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or the termination of this Agreement, whichever comes first. Upon request, the Receiving Party will certify in writing that it has fully complied with its obligations under this Section 4.4. 5. Additional Orders; Delivery 5.1 Additional Orders. Subject to the terms and conditions of this Agreement, Customer may place orders for additional licenses to the Software, additional Software integrations with additional targets or sources, and/or support and maintenance or training services by contacting Striim at http://www.striim.com/azure-support/ or provisioning additional licenses through the Microsoft Azure Marketplace. 5.2 Delivery. Upon completion of the provisioning process on Microsoft Azure Marketplace, Customer will click the “Purchase” button to receive access the Software (“Delivery”). Customer acknowledges that certain internet connections and hardware capabilities are necessary to complete electronic receipt of the IP address, and agrees that Customer personnel will retrieve the IP address and access the Software placed by Striim within the Microsoft Azure Cloud. Customer acknowledges that the electronic deliveries may be slow and time-consuming depending upon network traffic and reliability. Customer will be deemed to have unconditionally and irrevocably accepted the Software and related Documentation upon Delivery. 6. Support; Maintenance 6.1 Support. Support services for the Software is included in the purchase of the Software. Support provided by Striim for the Software will be subject to the terms and conditions set forth at http://www.striim.com/azure-support/. Other than as expressly provided in http://www.striim.com/azure-support/, this Agreement does not obligate Striim to provide any support or maintenance services. 6.2 Maintenance. The version of the Software defined in the Striim Solution Set purchased by Customer shall not be updated automatically as deployed in the Azure Microsoft Cloud environment. If you are interested in purchasing an update to the version you purchased hereunder, Customer may purchase new updates, upgrades, and future versions of the Software, when and as made available by Striim via the Microsoft Azure Marketplace. Customer must purchase these new versions by provisioning these new versions through the Mircosoft Azure Marketplace. 7. Term And Termination 7.1 Term. The term of this Agreement will begin on the Effective Date and continue in force as a monthly subscription for the period purchased by Customer via the Microsoft Azure Marketplace, unless earlier terminated by Strrim in accordance with Section 7.2. 7.2 Termination of Agreement. Striim may terminate this Agreement for material breach by Customer which remains uncured thirty (30) days after delivery of written notice of such breach to Customer. Notwithstanding the foregoing, Striim may immediately terminate this Agreement and all licenses granted hereunder if Customer breaches Section 2 hereof. The foregoing rights of termination are in addition to any other rights and remedies provided in this Agreement or by law. 7.3 Effect of Termination. Upon termination of this Agreement (or termination of any license granted hereunder), all rights of Customer to Use the Software (or under the relevant license) will cease and: (a) all license rights granted under this Agreement will immediately terminate and Customer shall promptly stop all Use of the Software; (b) Striim’s obligation to provide support for the Software will terminate; (c) Customer shall erase all copies of the Software from Customer’s computers, and destroy all copies of the Software and Documentation on tangible media in Customer’s possession or control or return such copies to Striim; and (d) upon request by Striim, Customer shall certify in writing to Striim that that it has returned or destroyed such Software and Documentation. 7.4 Survival. Sections 1, 3, 4, 7.3, 7.4, 9, 10 (only for claims arising based on Use of the Software prior to termination of the applicable license), 11, and 12 will survive the termination of this Agreement. 8. Fees. Customer shall pay the Fees for the Striim Solution Set set forth in the provisioning process of the Microsoft Azure Marketplace. 9. Limited Warranty 9.1 Software Warranty. Striim warrants to, and for the sole benefit of, Customer that, subject to Section 9.2, any Software, as delivered by Striim and properly operated within the Microsoft Azure Clound and used as permitted under this Agreement and in accordance with the Documentation, will perform substantially in accordance with the Documentation for ninety (90) days from the date of Delivery. Customer’s exclusive remedy and Striim’s sole liability for breach of this warranty is for Striim, at its own expense, to replace the Software with a version of the Software that corrects those Errors that Customer reports to Striim during such warranty period. Any Error correction provided will not extend the original warranty period. 9.2 Exclusions. Striim will have no obligation under this Agreement to correct, and Striim makes no warranty with respect to, Errors related to: (a) improper operation of the applicable Software; (b) changes that Customer has made to the applicable Software; (c) Use of the applicable Software in a manner inconsistent with the Documentation and this Agreement; (d) combination of the applicable Software with third party hardware or software not conforming to the operating environment specified in the Documentation; or (e) malfunction, modification, or relocation of Customer’s servers. 9.3 Disclaimer. Except as provided in Section 9.1, Striim Hereby disclaims all warranties whether express, implied or statutory with respect to the Software, Documentation, support services, and any other products or services provided to Customer under this Agreement, including without limitation any implied warranties of merchantability, fitness for a particular purpose, title, non-infringement, and any warranty against interference with Customer’s enjoyment of the Software, Documentation, Installation Services, support services, and any other products or services provided to Customer under this Agreement. 10. Proprietary Rights Indemnity 10.1 Striim’s Obligation. Subject to the terms and conditions of Section 10, Striim will defend at its own expense any suit or action brought against Customer by a third party to the extent that the suit or action is based upon a claim that the Software infringes such third party’s United States copyrights or misappropriates such third party’s trade secrets recognized as such under the Uniform Trade Secrets Act or such other similar laws, and Striim will pay those costs and damages finally awarded against Customer in any such action or those costs and damages agreed to in a monetary settlement of such claim, in each case that are specifically attributable to such claim. However, such defense and payments are subject to the conditions that: (a) Striim will be notified promptly in writing by Customer of any such claim; (b) Striim will have sole control of the defense and all negotiations for any settlement or compromise of such claim; and (c) Customer will cooperate and, at Striim’s request and expense, assist in such defense. This Section 10.1 states Striim’s entire liability and Customer’s sole and exclusive remedy for any Intellectual Property Right infringement and/or misappropriation. 10.2 Alternative. If Customer’s or its affiliate’s Use of Software is prevented by injunction or court order because of infringement, or should any Software be likely to become the subject of any claim in Striim’s opinion, Customer will permit Striim, at the sole discretion of Striim and no expense to Customer, to: (i) procure for Customer the right to continue using such Software in accordance with this Agreement; or (ii) replace or modify such Software so that it becomes non-infringing while providing substantially similar features. Where (i) and (ii) above are not commercially feasible for Striim, the applicable licenses will immediately terminate and Striim will refund pro rated fees for the remainder of the term to End User. 10.3 Exclusions. Striim will have no liability to Customer or any of its affiliates for any claim of infringement or misappropriation to the extent based upon: (a) Use of the Software not in accordance with this Agreement or the Documentation; (b) the combination of the applicable Software with third party hardware or software not conforming to the operating environment specified in Documentation; (c) Use of any Release of the Software other than the most current Release made available to Customer; or (d) any modification of the Software by any person other than Striim. Customer will indemnify Striim against all liability, damages and costs (including reasonable attorneys’ fees) resulting from any such claims. 10.4 Required Updates. In the event the Software become subject to a claim or in Striim’s opinion is likely to be subject to a claim, upon notice from Striim to Customer that required updates are available, Customer agrees to cease use of the existing version of the Striim Solution Set. Thereafter, at Customer’s option, Customer may commence operation of such updates to the Software provided by Striim. Striim will offer the new version of the Software within five (5) business days (the “Required Update Period”). At the end of any Required Update Period, Customer’s and its Subsidiaries’ right and license to Use all prior versions of the Software shall automatically terminate and Striim shall have no liability for any Use of the prior versions of the Software occurring after the Required Update Period. 11. Limitation Of Liability. In no event will Striim be liable to Customer or any other party for any special, punitive, indirect, incidental, exemplary, or consequential damages arising out of or related to this Agreement under any legal theory, including, but not limited to, loss of data, loss of the use or performance of any products, loss of revenues, loss of profits, or business interruption, even if Striim knows of or should have known of the possibility of such damages. in no event will Striim’s total cumulative liability arising out of or related to this Agreement exceed the total amount of fees received by Striim from Microsoft on behalf of Customer under this Agreement during the twelve (12) months immediately preceding such claim. This Section 11 will apply even if an exclusive remedy of Customer under this Agreement has failed of its essential purpose. 12. General 12.1 Relationship of Parties. The parties hereto are independent contractors. Nothing in this Agreement will be deemed to create an agency, employment, partnership, fiduciary or joint venture relationship between the parties. 12.2 Publicity. Striim may use Customer’s name and a description of Customer’s Use of the Software for investor relations and marketing purposes. 12.3 Compliance with Export Control Laws. The Software may contain encryption technology controlled under U.S. export law, the export of which may require an export license from the U.S. Commerce Department. Customer will comply with all applicable export control laws and regulations of the U.S. and other countries. Customer will defend, indemnify, and hold harmless Striim from and against all fines, penalties, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) incurred by Striim as a result of Customer’s breach of this Section 12.5. 12.4 Assignment. Customer may not assign or transfer, by operation of law, merger or otherwise, any of its rights or delegate any of its duties under this Agreement (including, without limitation, its licenses for the Software) to any third party without Striim’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be null and void. Striim may assign its rights or delegate its obligations under this Agreement. 12.5 Governing Law and Venue. This Agreement will be governed by the laws of the State of California, excluding any conflict of law provisions that would require the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought exclusively in a federal or state court located in Santa Clara, California. Each party irrevocably consents to the personal jurisdiction and venue in, and agrees to service of process issued by, any such court. Notwithstanding the foregoing, either party may bring an action or suit seeking injunctive relief to protect its Intellectual Property Rights or Confidential Information in any court having jurisdiction. 12.6 Force Majeure. Any delay in or failure of performance by either party under this Agreement, other than a failure to pay amounts when due, will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of such party. 12.7 Remedies. Except as provided in Sections 9 and 10 of this Agreement, the parties’ rights and remedies under this Agreement are cumulative. Customer acknowledges that the Software contains valuable trade secrets and proprietary information of Striim, that any actual or threatened breach of Section 2 (Grant and Scope of License) or Section 4 (Confidentiality) will constitute immediate, irreparable harm to Striim for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive. 12.8 Waiver; Severability. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is adjudicated to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. 12.9 Order of Precedence; Construction. The provisions of the standard terms and conditions will prevail regardless of any inconsistent or conflicting provisions on any Order Forms. The Section headings of this Agreement are for convenience and will not be used to interpret this Agreement. As used in this Agreement, the word “including” means “including but not limited to.” IMPORTANT: Please read this End User License Agreement (“Agreement”) before clicking the “accept” button, installing, configuring and/or using the Software (as defined below) that accompanies or is provided in connection with this Agreement. By clicking the “Accept” button, installing, configuring and/or using the Software, you and the entity that you represent (“Customer”) agree to be bound by this Agreement with Striim, Inc. (“Striim”). You represent and warrant that you have the authority to bind such entity to these terms. If Customer does not unconditionally agree to all of the terms of this Agreement, use of the Software is strictly prohibited. To the extent Customer has separately entered into an End User License Agreement with Striim covering the same Software, the terms and conditions of such End User License Agreement shall supersede this Agreement in its entirety. This Agreement includes and incorporates by reference the following documents: Standard Terms and Conditions http://www.striim.com/azure-support/ The Agreement includes the documents listed above and states the entire agreement between the parties regarding its subject matter and supersedes all prior and contemporaneous agreements, terms sheets, letters of intent, understandings, and communications, whether written or oral. All amounts paid by Customer under this Agreement shall be non-refundable and non-recoupable, unless otherwise provided herein. Any marketing collateral, quotes, or other similar written purchase authorization that add to, or conflict with or contradict, any provisions in the Agreement will have no legal effect. The provisions of this Agreement may be amended or waived only by a written document signed by both parties. STANDARD TERMS AND CONDITIONS 1. Definitions 1.1 “CPU” means a single central processing unit of a Customer system, with one or more Cores. 1.2 “Core” means each of the independent processor components within a single CPU. 1.3 “Customer” means that person or entity listed in connection with the purchase of the Software from the Microsoft Azure Marketplace. 1.4 “Documentation” means the standard end-user technical documentation, specifications, materials and other information Striim supplies in electronic format with the Software or makes available electronically. Advertising and marketing materials are not Documentation. 1.5 “Effective Date” means the date Customer purchases the Software through the Microsoft Azure Marketplace. 1.6 “Intellectual Property Rights” means copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contractual rights of non-disclosure or any other intellectual property or proprietary rights, however arising, throughout the world. 1.7 “Software” means the software that is encompassed within the Striim Solution Set that Customer purchased through the Microsoft Azure Marketplace for the number of Cores purchased. 1.8 “Sources and Targets” means the source and target systems of the data being analyzed as defined within the scope of the Striim Solution Set that you purchased through the Microsoft Azure Marketplace. 1.9 “Support Services” means the services as defined in the support policy set forth at http://www.striim.com/azure-support/ that correspond to the Software purchased by Customer on the Microsoft Azure Marketplace. 1.10 “Use” means to execute within the Microsoft Azure Cloud any machine-executable portion of the Software in accordance with the Documentation or to make use of any Documentation, or related materials in connection with the execution of any machine-executable portion of the Software in the Microsoft Azure Cloud. 1.11 “User” means an employee of Customer or independent contractor to Customer who is working for Customer and has been authorized by Customer to Use the Software. 2. Grant And Scope Of License 2.1 Software License. Subject to the terms and conditions of this Agreement, Striim hereby grants Customer a non-exclusive, non-transferable (except as provided under Section 12.6), non-sublicensable monthly subscription license for Users to execute and Use the Software solely as hosted by and within the Microsoft Azure environment, and use the Documentation, solely for Customer’s own internal business purposes. Customer shall be solely responsible for all acts or omissions of its affiliates and any breach of this Agreement by an affiliate of Customer shall be deemed a breach by Customer. 2.2 License Restrictions. Customer shall not: (a) Use the Software except as expressly permitted under Section 2.1; (b) separate the component programs of the Software for use on different computers; (c) adapt, alter, publicly display, publicly perform, translate, create derivative works of, or otherwise modify the Software; (d) sublicense, lease, rent, loan, or distribute the Software to any third party; (e) transfer the Software to any third party (except as provided under Section 12.6); (f) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code for the Software, except as permitted by applicable law; (g) remove, alter or obscure any proprietary notices on the Software or Documentation; (h) allow third parties to access or use the Software, including any use in any application service provider environment, service bureau, or time-sharing arrangements; or (i) use the Software (other than Striim agents) in an environment other than Microsoft Azure Cloud. Customer is restricted to the sources and targets comprised within the Striim Solution Set purchased through the Microsoft Azure Marketplace. No portion of the Software may be duplicated by Customer, except as otherwise expressly authorized in writing by Striim. 3. Proprietary Rights. Customer acknowledges and agrees that the Software, including its sequence, structure, organization, source code and Documentation contains valuable Intellectual Property Rights of Striim and its suppliers. The Software and Documentation are licensed and not sold to Customer, and no title or ownership to such Software, Documentation, or the Intellectual Property Rights embodied therein passes as a result of this Agreement or any act pursuant to this Agreement. The Software, Documentation, and all Intellectual Property Rights therein are the exclusive property of Striim and its suppliers, and all rights in and to the Software and Documentation not expressly granted to Customer in this Agreement are reserved. Striim owns all rights, title, and interest to the Software and Documentation. Nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, a license under any existing or future patents of Striim, except to the extent necessary for Customer to Use the Software and Documentation as expressly permitted under this Agreement. 4. Confidentiality 4.1 Confidential Information. Each party (the “Disclosing Party”) may during the term of this Agreement disclose to the other party (the “Receiving Party”) non-public information regarding the Disclosing Party’s business, including technical, marketing, financial, employee, planning, and other confidential or proprietary information, that (1) if in tangible form, is clearly marked at the time of disclosure as being confidential, or (2) if disclosed orally or visually, is designated at the time of disclosure as confidential, or (3) is reasonably understood to be confidential or proprietary information, whether or not marked. (“Confidential Information”). Without limiting the generality of the foregoing, the Software and the Documentation constitute Striim’s Confidential Information and Customer Data constitutes Customer's Confidential Information. 4.2 Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. 4.3 Exceptions. The Receiving Party’s obligations under Section 4.2 with respect to Confidential Information of the Disclosing Party will terminate to the extent such information: (a) was already known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order or a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. 4.4 Return of Confidential Information. The Receiving Party will either return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or the termination of this Agreement, whichever comes first. Upon request, the Receiving Party will certify in writing that it has fully complied with its obligations under this Section 4.4. 5. Additional Orders; Delivery 5.1 Additional Orders. Subject to the terms and conditions of this Agreement, Customer may place orders for additional licenses to the Software, additional Software integrations with additional targets or sources, and/or support and maintenance or training services by contacting Striim at http://www.striim.com/azure-support/ or provisioning additional licenses through the Microsoft Azure Marketplace. 5.2 Delivery. Upon completion of the provisioning process on Microsoft Azure Marketplace, Customer will click the “Purchase” button to receive access the Software (“Delivery”). Customer acknowledges that certain internet connections and hardware capabilities are necessary to complete electronic receipt of the IP address, and agrees that Customer personnel will retrieve the IP address and access the Software placed by Striim within the Microsoft Azure Cloud. Customer acknowledges that the electronic deliveries may be slow and time-consuming depending upon network traffic and reliability. Customer will be deemed to have unconditionally and irrevocably accepted the Software and related Documentation upon Delivery. 6. Support; Maintenance 6.1 Support. Support services for the Software is included in the purchase of the Software. Support provided by Striim for the Software will be subject to the terms and conditions set forth at http://www.striim.com/azure-support/. Other than as expressly provided in http://www.striim.com/azure-support/, this Agreement does not obligate Striim to provide any support or maintenance services. 6.2 Maintenance. The version of the Software defined in the Striim Solution Set purchased by Customer shall not be updated automatically as deployed in the Azure Microsoft Cloud environment. If you are interested in purchasing an update to the version you purchased hereunder, Customer may purchase new updates, upgrades, and future versions of the Software, when and as made available by Striim via the Microsoft Azure Marketplace. Customer must purchase these new versions by provisioning these new versions through the Mircosoft Azure Marketplace. 7. Term And Termination 7.1 Term. The term of this Agreement will begin on the Effective Date and continue in force as a monthly subscription for the period purchased by Customer via the Microsoft Azure Marketplace, unless earlier terminated by Strrim in accordance with Section 7.2. 7.2 Termination of Agreement. Striim may terminate this Agreement for material breach by Customer which remains uncured thirty (30) days after delivery of written notice of such breach to Customer. Notwithstanding the foregoing, Striim may immediately terminate this Agreement and all licenses granted hereunder if Customer breaches Section 2 hereof. The foregoing rights of termination are in addition to any other rights and remedies provided in this Agreement or by law. 7.3 Effect of Termination. Upon termination of this Agreement (or termination of any license granted hereunder), all rights of Customer to Use the Software (or under the relevant license) will cease and: (a) all license rights granted under this Agreement will immediately terminate and Customer shall promptly stop all Use of the Software; (b) Striim’s obligation to provide support for the Software will terminate; (c) Customer shall erase all copies of the Software from Customer’s computers, and destroy all copies of the Software and Documentation on tangible media in Customer’s possession or control or return such copies to Striim; and (d) upon request by Striim, Customer shall certify in writing to Striim that that it has returned or destroyed such Software and Documentation. 7.4 Survival. Sections 1, 3, 4, 7.3, 7.4, 9, 10 (only for claims arising based on Use of the Software prior to termination of the applicable license), 11, and 12 will survive the termination of this Agreement. 8. Fees. Customer shall pay the Fees for the Striim Solution Set set forth in the provisioning process of the Microsoft Azure Marketplace. 9. Limited Warranty 9.1 Software Warranty. Striim warrants to, and for the sole benefit of, Customer that, subject to Section 9.2, any Software, as delivered by Striim and properly operated within the Microsoft Azure Clound and used as permitted under this Agreement and in accordance with the Documentation, will perform substantially in accordance with the Documentation for ninety (90) days from the date of Delivery. Customer’s exclusive remedy and Striim’s sole liability for breach of this warranty is for Striim, at its own expense, to replace the Software with a version of the Software that corrects those Errors that Customer reports to Striim during such warranty period. Any Error correction provided will not extend the original warranty period. 9.2 Exclusions. Striim will have no obligation under this Agreement to correct, and Striim makes no warranty with respect to, Errors related to: (a) improper operation of the applicable Software; (b) changes that Customer has made to the applicable Software; (c) Use of the applicable Software in a manner inconsistent with the Documentation and this Agreement; (d) combination of the applicable Software with third party hardware or software not conforming to the operating environment specified in the Documentation; or (e) malfunction, modification, or relocation of Customer’s servers. 9.3 Disclaimer. Except as provided in Section 9.1, Striim Hereby disclaims all warranties whether express, implied or statutory with respect to the Software, Documentation, support services, and any other products or services provided to Customer under this Agreement, including without limitation any implied warranties of merchantability, fitness for a particular purpose, title, non-infringement, and any warranty against interference with Customer’s enjoyment of the Software, Documentation, Installation Services, support services, and any other products or services provided to Customer under this Agreement. 10. Proprietary Rights Indemnity 10.1 Striim’s Obligation. Subject to the terms and conditions of Section 10, Striim will defend at its own expense any suit or action brought against Customer by a third party to the extent that the suit or action is based upon a claim that the Software infringes such third party’s United States copyrights or misappropriates such third party’s trade secrets recognized as such under the Uniform Trade Secrets Act or such other similar laws, and Striim will pay those costs and damages finally awarded against Customer in any such action or those costs and damages agreed to in a monetary settlement of such claim, in each case that are specifically attributable to such claim. However, such defense and payments are subject to the conditions that: (a) Striim will be notified promptly in writing by Customer of any such claim; (b) Striim will have sole control of the defense and all negotiations for any settlement or compromise of such claim; and (c) Customer will cooperate and, at Striim’s request and expense, assist in such defense. This Section 10.1 states Striim’s entire liability and Customer’s sole and exclusive remedy for any Intellectual Property Right infringement and/or misappropriation. 10.2 Alternative. If Customer’s or its affiliate’s Use of Software is prevented by injunction or court order because of infringement, or should any Software be likely to become the subject of any claim in Striim’s opinion, Customer will permit Striim, at the sole discretion of Striim and no expense to Customer, to: (i) procure for Customer the right to continue using such Software in accordance with this Agreement; or (ii) replace or modify such Software so that it becomes non-infringing while providing substantially similar features. Where (i) and (ii) above are not commercially feasible for Striim, the applicable licenses will immediately terminate and Striim will refund pro rated fees for the remainder of the term to End User. 10.3 Exclusions. Striim will have no liability to Customer or any of its affiliates for any claim of infringement or misappropriation to the extent based upon: (a) Use of the Software not in accordance with this Agreement or the Documentation; (b) the combination of the applicable Software with third party hardware or software not conforming to the operating environment specified in Documentation; (c) Use of any Release of the Software other than the most current Release made available to Customer; or (d) any modification of the Software by any person other than Striim. Customer will indemnify Striim against all liability, damages and costs (including reasonable attorneys’ fees) resulting from any such claims. 10.4 Required Updates. In the event the Software become subject to a claim or in Striim’s opinion is likely to be subject to a claim, upon notice from Striim to Customer that required updates are available, Customer agrees to cease use of the existing version of the Striim Solution Set. Thereafter, at Customer’s option, Customer may commence operation of such updates to the Software provided by Striim. Striim will offer the new version of the Software within five (5) business days (the “Required Update Period”). At the end of any Required Update Period, Customer’s and its Subsidiaries’ right and license to Use all prior versions of the Software shall automatically terminate and Striim shall have no liability for any Use of the prior versions of the Software occurring after the Required Update Period. 11. Limitation Of Liability. In no event will Striim be liable to Customer or any other party for any special, punitive, indirect, incidental, exemplary, or consequential damages arising out of or related to this Agreement under any legal theory, including, but not limited to, loss of data, loss of the use or performance of any products, loss of revenues, loss of profits, or business interruption, even if Striim knows of or should have known of the possibility of such damages. in no event will Striim’s total cumulative liability arising out of or related to this Agreement exceed the total amount of fees received by Striim from Microsoft on behalf of Customer under this Agreement during the twelve (12) months immediately preceding such claim. This Section 11 will apply even if an exclusive remedy of Customer under this Agreement has failed of its essential purpose. 12. General 12.1 Relationship of Parties. The parties hereto are independent contractors. Nothing in this Agreement will be deemed to create an agency, employment, partnership, fiduciary or joint venture relationship between the parties. 12.2 Publicity. Striim may use Customer’s name and a description of Customer’s Use of the Software for investor relations and marketing purposes. 12.3 Compliance with Export Control Laws. The Software may contain encryption technology controlled under U.S. export law, the export of which may require an export license from the U.S. Commerce Department. Customer will comply with all applicable export control laws and regulations of the U.S. and other countries. Customer will defend, indemnify, and hold harmless Striim from and against all fines, penalties, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) incurred by Striim as a result of Customer’s breach of this Section 12.5. 12.4 Assignment. Customer may not assign or transfer, by operation of law, merger or otherwise, any of its rights or delegate any of its duties under this Agreement (including, without limitation, its licenses for the Software) to any third party without Striim’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be null and void. Striim may assign its rights or delegate its obligations under this Agreement. 12.5 Governing Law and Venue. This Agreement will be governed by the laws of the State of California, excluding any conflict of law provisions that would require the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought exclusively in a federal or state court located in Santa Clara, California. Each party irrevocably consents to the personal jurisdiction and venue in, and agrees to service of process issued by, any such court. Notwithstanding the foregoing, either party may bring an action or suit seeking injunctive relief to protect its Intellectual Property Rights or Confidential Information in any court having jurisdiction. 12.6 Force Majeure. Any delay in or failure of performance by either party under this Agreement, other than a failure to pay amounts when due, will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of such party. 12.7 Remedies. Except as provided in Sections 9 and 10 of this Agreement, the parties’ rights and remedies under this Agreement are cumulative. Customer acknowledges that the Software contains valuable trade secrets and proprietary information of Striim, that any actual or threatened breach of Section 2 (Grant and Scope of License) or Section 4 (Confidentiality) will constitute immediate, irreparable harm to Striim for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive. 12.8 Waiver; Severability. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is adjudicated to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. 12.9 Order of Precedence; Construction. The provisions of the standard terms and conditions will prevail regardless of any inconsistent or conflicting provisions on any Order Forms. The Section headings of this Agreement are for convenience and will not be used to interpret this Agreement. As used in this Agreement, the word “including” means “including but not limited to.”