Kinetica in Azure Marketplace Terms and Conditions These Terms and Conditions for Software and Services, together with all appendices and exhibits, (the “Agreement”) are effective the earlier of (1) any access or use of the Cloud Services obtained through the Marketplace, (2) when a “create”, “I agree”, or similar button or check box referencing this Agreement is clicked, or (3) when an Order Form made available on the Marketplace is accepted (“Effective Date”). The Agreement is made by and between KineticaDB, Inc,. with an office at 901 N. Glebe Road, Suite 700 Arlington VA. 22203, (“Kinetica”) and you or the entity or organization that you represent (“Licensee”). IF YOU DO NOT AGREE WITH THIS AGREEMENT AND THESE TERMS YOU MUST NOT USE THE CLOUD SERVICES. 1. LICENSES 1.1 Cloud License. Subject to the terms of this Agreement, Kinetica shall make available and grants to Licensee a worldwide, nonexclusive, license to access and use the Cloud Services the Services and/or Software solely during the Subscription Term and as otherwise specified in an applicable Order Form. 1.2 Beta License. Subject to the terms of this Agreement and if specified in an applicable Order Form, Kinetica shall make available and grants to Licensee the Services and/or Software for thirty (30) days unless otherwise specified in the applicable Order Form. DURING THE BETA LICENSE PERIOD, THE SOFTWARE AND SERVICES ARE PROVIDED “AS- IS” WITHOUT ANY WARRANTY OF ANY KIND AND KINETICA HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY. 1.3 Licensee Data. Licensee grants Kinetica a non-exclusive, worldwide license to store, copy, transmit and display Licensee Data created and made available to the Cloud Services in connection with the provision of such Cloud Services. Licensee acknowledges that Kinetica will collect metadata about the Licensee Data and use of the Cloud Services and hereby grants Kinetica the right to do so as long as no Licensee Data is used in identifiable form. 1.4 License Restrictions. There are no implied licenses under this Agreement, and any rights not expressly granted hereunder are reserved by Kinetica. Without limiting the foregoing, Licensee shall not sublicense, rent, lease, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble, attempt to derive source code from or otherwise alter the Cloud Services. 1.5 Ownership and Reservation of Rights. All intellectual property rights, title and interest in and to the Cloud Services (and all software and materials used for the provision of such Services) as well as any and all feedback offered with respect to the Cloud Services are owned and retained by Kinetica. 2. SERVICES. 2.1 Available Services Kinetica may provide Customer with Support Services and limited Consulting Services (collectively the “Services”) as specified on an Order Form. If Customer chooses to purchase additional Services such Services will be governed by separate terms and conditions that may be found here: https://www.kinetica.com/agreements. 2.2 Support Services. Kinetica will provide Support for the Cloud Services in accordance with the applicable Order Form and Kinetica’s support policies specified at https://www.kinetica.com/agreements/support-services-agreement/. Kinetica reserves the right to amend its standard Support Services terms at any time. 3. TERM AND TERMINATION. 3.1 Term. The Agreement shall continue unless and until terminated pursuant to this Section 3 (“Term and Termination”). Licensee’s access and license to any Cloud Services shall terminate at the end of the applicable Subscription Term unless the Order is renewed or extended. 3.2 Termination. Either party may terminate this agreement immediately upon notice to the other party if the other party (i) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, or (ii) materially breaches any of its obligations under the Agreement or any Order Form, which breach is not remedied within thirty (30) days following the breaching party’s receipt of written notice of such breach. 3.3 Effect of Termination. In the event of any termination of this Agreement, all licenses granted hereunder shall immediately terminate, Licensee shall immediately cease any and all use of the Cloud Services and the following sections shall survive: Sections 1.5 (Ownership and Reservation of Rights), 3.3 (Effect of Termination), 5 (Confidential Information), 7 (Indemnity), 8 (Limitation of Liability), 9 (General), 10 (Definitions) and payment obligations under this Agreement. 4. FEES 4.1 Invoicing and Payment. Licensee will pay all fees specified in the applicable Order Form(s) or as charged through the applicable Marketplace. Except as otherwise specified herein or in an Order Form, payment obligations are non-cancelable and non-refundable. All payments shall be made as specified in the Order Form or as specified through the Marketplace offering. 4.2 Additional Fees. If Licensee’s use the Cloud Services exceeds any limits set forth in the Order Form, Licensee will pay the appliable surcharges for such excess usage. 4.3 Suspension. Kinetica reserves the right to suspend access to and use of the Cloud Services if any amount owed is thirty (30) or more days overdue. 4.4 Taxes. Fees do not include any applicable taxes, including for example, value-added, sales and/or use taxes assessable in any jurisdiction (collectively, “Taxes”) and Licensee agrees and acknowledges that it is responsible for paying all Taxes (excluding any taxes based on Kinetica’s net income). 5. CONFIDENTIAL INFORMATION. During the Term and for three (3) years after the expiration or termination of this Agreement, each party undertakes that it shall (a) take all reasonable measures to protect the secrecy of, and avoid disclosure or use of, Confidential Information of the other party except as permitted herein, (b) notify the other in writing of any actual or suspected misuse, misappropriation or unauthorized disclosure of Confidential Information of the disclosing party which may come to the receiving party’s attention, (c) not at any time disclose to any person any Confidential Information of the other party except (1) to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Agreement and then in each case shall ensure any such person to whom it discloses the other party’s Confidential Information complies with this clause, and (2) as may be required by law, court order or any governmental or regulatory authority. Notwithstanding the foregoing, the receiving party shall have no liability to the disclosing party with regard to any Confidential Information which the receiving party can prove: (i) was in or has entered the public domain at the time it was disclosed through no fault of the receiving party, (ii) was known to the receiving party, without restriction, at the time of disclosure, (iii) is disclosed with the prior written approval of the disclosing party, (iv) was independently developed by the receiving party without any use of the Confidential Information (v) becomes known to the receiving party, without restriction, from a source other than the disclosing party, without breach of the Agreement by the receiving party and otherwise not in violation of the disclosing party’s rights, or (vi) is disclosed pursuant to an order of a court or other governmental or regulatory body. 6. WARRANTY AND DISCLAIMER 6.1 Mutual Warranties. Each party represents that it has the requisite power and authority to enter into the Agreement and to perform its obligations under it. 6.2 Kinetica Warranties. Kinetica represents and warrants that during the applicable Order Form Term (a) the Cloud Services will operate materially in accordance with the relevant Documentation, and (b) any and will be performed with reasonable skill and ability and in accordance with good industry standards. These warranties shall not apply to the extent the breach is caused by or as a result of use of the Cloud Services outside the scope of this Agreement and/or applicable Documentation or (ii) any modifications or alterations of the Cloud Services by any party other than Kinetica. 6.3 Remedy. Should a breach of a warranty occur Kinetica will at its sole option and expense and Licensee’s sole remedy either repair or replace the affected Cloud Services; and/or terminate the license and refund any prepaid fees covering the remainder of the Subscription Term. 6.4 DISCLAIMER. EXCEPT WHERE PROHBITED BY APPLICABLE LAW, THE WARRANTIES AND REMEDIES PROVIDED IN THIS SECTION 6 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, TERMS AND CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OR TERMS AND CONDITIONS OF MERCHANTIBILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE OR SATISFACTORY QUALITY AND NON-INFRINGEMENT (EXCEPT AS PROVIDED BELOW). ALL OF THE FOREGOING WARRANTIES AND REMEDIES ARE, EXCEPT AS OTHERWISE SET FORTH IN THIS AGREMEENT, TO THE EXTENT AUTHORIZED BY CALIFORNIA LAW, EXPRESSLY DISCLAIMED BY US. 7. INDEMNITY 7.1 Indemnification by Kinetica. Kinetica shall defend and indemnify Licensee from and against any claim or action brought by a third party alleging that use of the Cloud Services in compliance with the Agreement and the Order Form infringes or misappropriates such third party’s copyright, patent or other intellectual property right or violates applicable law (a “Claim”) provided that Licensee provides Kinetica with prompt written notice of the Claim, sole control of the defense and settlement of the Claim, and all reasonably requested information and assistance in defending the Claim. If Licensee notifies Kinetica of a Claim or Kinetica receives information about an infringement or misappropriation claim related to the Cloud Services, Kinetica may at its option and expense: (a) replace or modify the Cloud Services so that they no longer infringe or misappropriate, (b) procure a license allowing Licensee to continue using the Cloud Services, or (c) terminate the applicable Order Form for those Cloud Services, refund pro rata any prepaid fees under the applicable terminated Order Form 8. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE HEREUNDER FOR ANY LOSS OF DATA, LOSS OF THE USE OR PERFORMANCE OF ANY HARDWARE OR PRODUCTS, LOSS OF REVENUES OR PROFITS OR BUSINESS INTERRUPTION, SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES AND EACH PARTY’S AGGREGATE LIABILITY FOR OR IN RESPECT OF ANY LOSS OR DAMAGE SUFFERED BY THE OTHER UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES ACTUALLY RECEIVED BY KINETICA FROM LICENSEE UNDER THE AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THE FOREGOING SHALL APPLY UNDER ANY LEGAL THEORY, EVEN IF A PARTY KNOWS OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. 9. MISCELLANEOUS Except as otherwise agreed by the parties in the relevant Order Form, neither party may make any public announcement or press release about the terms of the Agreement without the other party’s prior written approval and consent, not to be unreasonably withheld (provided that Kinetica may identify Licensee as a customer). No waiver by either party of any breach or default under the Agreement shall be deemed to be a waiver of any preceding or subsequent breach or default. Except as otherwise specified in the Agreement or below, all notices, permissions, and approvals hereunder shall be in writing and shall be deemed to have been given upon the date: (i) of personal delivery, (ii) of receipt of registered mail, (iii) which is two business days after sending by e-mail (provided that e-mail shall not be sufficient for notices of termination for cause or an indemnifiable claim). Except as permitted herein, neither party may assign the Agreement, in whole or in part, without the prior written consent of the other, not to be unreasonably withheld, provided that either party may assign to an acquirer of all or substantially all of a party’s assets and any attempted assignment in violation of the foregoing will be null and void. If any provision or part of a provision in the Agreement is held to be illegal, invalid, or unenforceable by a court or other decision-making authority or competent jurisdiction, then the remainder of the provision will be enforced so as to affect the intention of the parties, and the validity and enforceability of all other provisions in the Agreement will not be affected or impaired. This Agreement and/or all applicable Order Forms set out the entire agreement and understanding between Kinetica and Licensee. The relationship between Kinetica and Licensee is that of independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, employment or any such similar relationship. The applicable governing law and the jurisdiction shall be California and both Kinetica and Licensee submit to the personal jurisdiction of the federal courts located in San Francisco, California. NEITHER PARTY SHALL HAVE ANY LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT IF IT IS PREVENTED FROM, OR DELAYED IN, PERFORMING ITS OBLIGATIONS UNDER THIS AGREEMENT OR FROM CARRYING ON ITS BUSINESS BY A FORCE MAJEURE EVENT. For the purposes of this Agreement, a “Force Majeure Event” shall mean acts, events, omissions or accidents beyond Our reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, act of terror, Internet service provider failure or delay, denial of service attack, fire, flood or storm. 10. DEFINITIONS Confidential Information: all confidential or sensitive information or data, whether obtained before or after the Effective Date in respect of products, services, software, developments, trade secrets, customers and suppliers of either party or any other information (whether commercial, financial, technical or otherwise) which is identified as confidential or proprietary information at the time of disclosure or which may reasonably be regarded as the confidential or proprietary information of that party and shall include Your Data and Usage Data and Our Software, Services and License Keys, but shall not, in any event, include this Agreement. Documentation: Our online User manuals, tutorials, documentation and help and training materials found at: https://docs.kinetica.com. Order Form: an order form or similar clickthrough arrangement entered into between Kinetica and Licensee detailing the Cloud Services ordered, the related Scope and any additional terms. Scope: the limits, as specified in the Order Form as applicable may be accessed and used. Cloud Services: the service that Licensee has subscribed to as described in an Order Form. Subscription Term: the period of time specified in an applicable Order Form during which the Licensee subscribes to the Cloud Services. Kinetica Marketplace Agreement v2 02042022