TERMS OF USE IMPORTANT – THESE TERMS OF USE (COLLECTIVELY WITH THE ORDER (DEFINED BELOW), THE “AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU ACTING INDIVIDUALLY AND ON BEHALF OF THE ENTITY NAMED IN THE APPLICABLE ORDERING DOCUMENT USED TO TRANSACT THROUGH THE AZURE MARKETPLACE AND APPSOURCE MARKETPLACE (SUCH ENTITY, “LICENSEE” AND SUCH ORDERING DOCUMENT, THE “ORDER”) AND o9 SOLUTIONS, INC. (“o9”) FOR THE SUBSCRIPTION TO THE SAAS (DEFINED BELOW) WITH WHICH THIS AGREEMENT IS PRESENTED. BY USING THE SAAS, LICENSEE ACCEPTS THE AGREEMENT. o9 MAY MODIFY ALL OR ANY PART OF THESE TERMS OF USE FROM TIME TO TIME WITHOUT NOTICE TO LICENSEE, AND LICENSEE SHOULD CHECK BACK OFTEN SO LICENSEE IS AWARE OF ITS CURRENT RIGHTS AND RESPONSIBILITIES. LICENSEE’S CONTINUED USE OF THE SAAS AFTER CHANGES TO THESE TERMS OF USE HAVE BEEN PUBLISHED CONSTITUTES LICENSEE’S BINDING ACCEPTANCE OF THE UPDATED TERMS OF USE. IF AT ANY TIME THESE TERMS OF USE ARE NO LONGER ACCEPTABLE TO LICENSEE, LICENSEE SHOULD IMMEDIATELY CEASE ALL USE OF THE SAAS. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IF LICENSEE HAS ENTERED INTO A SEPARATE MASTER AGREEMENT WITH o9 FOR SPECIFIC SAAS AND/OR SOLUTIONS, THEN THE TERMS OF THAT SIGNED MASTER AGREEMENT CONTROL TO THE EXTENT THEY CONFLICT WITH THIS AGREEMENT. 1. Grant. o9 grants Licensee, for its internal testing (non-production) and evaluation use purposes only and for no other purposes, a non-exclusive, non-transferable right to access and use the centrally-hosted software application set forth in the Order, which is managed and maintained by o9 and made available to Licensee over the internet or other network (commonly referred to as software-as-a-service), including all improvements, corrections, modifications, alterations, revisions, extensions, upgrades, updates, new releases, and/or enhancements thereto (the “SaaS”) for the term set forth in the Order and under the conditions and requirements set forth therein, and on the express condition that Licensee agrees to accept and be bound by this Agreement. This Agreement is the complete and exclusive agreement between o9 and Licensee regarding Licensee’s rights with respect to the SaaS. 2. Licensee Responsibilities and Restrictions. 2.1 Licensee Responsibilities. Licensee is responsible for the following: (i) protecting the names and passwords of Licensee’s users of the SaaS; (ii) preventing, and for promptly notifying o9 of, any unauthorized access to or use of the SaaS; (iii) each user’s compliance with the terms and conditions of this Agreement and for each user’s acts and omissions; (iv) using the SaaS within the permitted scope and limitations and only in accordance with this Agreement; (v) maintaining archival and backup copies of all Licensee data (and any prior versions thereof) outside of the instance being used by o9 to provide the SaaS; and (vi) using the SaaS in accordance with applicable laws. 2.2 Restrictions. 2.2.1 Restrictions on Licensee’s Use. Licensee agrees that it shall not reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets from any of the software comprising or in any way making up a part of the SaaS. Licensee shall not release to any third party the results of any evaluation of the SaaS performed by or on behalf of Licensee for the purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes, without the prior written approval of o9. Licensee shall not (and shall not permit others to): (i) license, sub-license, sell, re-sell, rent, lease, transfer, distribute or time share the SaaS, or make it available for access by third parties, including without limitation, in the manner of a service bureau or hosted application; (ii) create derivative works based on or otherwise modify the SaaS; (iii) disassemble, reverse engineer or decompile the SaaS; (iv) access the SaaS in order to develop a competing product or service; (v) use the SaaS to provide a service for others; or (vi) use, include, store or send Malicious Code from the SaaS. 2.2.2 Definition. For purposes of this Agreement, “Malicious Code” means any undocumented malicious data, code, program, or other internal component (e.g., computer worm, computer time bomb or similar component), which could damage, destroy, alter or disrupt any computer program, firmware or hardware, or which could, in any manner, reveal, damage, destroy, alter or disrupt any data or other information accessed through or processed by the SaaS or o9’s computer systems in any manner. 2.3 Prohibited Business Practices. Licensee agrees that it will not: (a) engage in any deceptive, misleading or unethical practices that are or might be detrimental to o9 and its products or services (including without limitation any disparagement of o9 and its products or services); (b) make any false or misleading representations with regard to o9 and its products, or services; or (c) make any representations, warranties or guarantees to any third parties or to the trade press with respect to the specifications, features or capabilities of the SaaS that are inconsistent with the specifications and documentation for the SaaS provided by o9. 3. o9 Intellectual Property. 3.1 As between Licensee and o9, subject to any licenses or use rights granted to Licensee under this Agreement, o9 reserves sole and exclusive ownership of the SaaS and all copyrights, patents, trademarks, and other intellectual property rights therein. If Licensee provides o9 with any suggestions, comments, or other feedback regarding the SaaS (“Feedback”), o9 is hereby granted a perpetual, royalty-free right to use any such Feedback in any manner and for any purpose, without compensation or attribution to Licensee. 4. Licensee Materials. 4.1 To the extent Licensee delivers to o9, or provides o9 access to, any software, specifications, documentation, data, hardware, tools, know how, methodologies, processes and/or any other materials, information or intellectual property owned, leased, and/or licensed by Licensee (collectively, “Licensee Materials”), o9 will have the right to use such Licensee Materials solely for Licensee’s benefit and solely for the purpose of performing its obligations to Licensee under the Agreement. Except for the limited right expressly granted above, Licensee does not grant to o9 any other rights or licenses in or to the Licensee Materials. o9 will return to Licensee all Licensee Materials in its possession upon Licensee’s request. 4.2 o9 will implement reasonable and appropriate security measures for the applicable SaaS designed to protect the Licensee Materials against unauthorized access, modification, destruction or disclosure in accordance with o9's then-current security standards for the processing of Licensee Materials (available upon written request). 4.3 To the extent that Licensee provides data relating to an identified or identifiable individual ("Personal Data") to o9, or o9 obtains any Personal Data from Licensee, o9 agrees that it (and/or its contractors) will not knowingly collect, access, use, store, disclose, transfer or otherwise process (collectively, "Process" or "Processing") any such Personal Data except (i) for the purposes of this Agreement, including without limitation, to implement and deliver the SaaS; (ii) as expressly permitted by Licensee in this Agreement or otherwise; or (iii) as compelled by law. Licensee shall make such disclosures, obtain such consents, provide such choices, implement such safeguards in compliance with, and otherwise comply with, any applicable law, rule or regulation regarding the Processing of Personal Data of any individual whose Personal Data Processed is by Licensee (including, without limitation, by disclosing the Personal Data to o9) in connection with Licensee’s use of or access to the SaaS. 5. Disclaimer of Warranties. THE SAAS, INCLUDING ALL MATERIALS INCORPORATED HEREIN, IS PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, o9 AND ITS SUBSIDIARIES, AFFILIATES, DISTRIBUTORS, PARTNERS, LICENSORS, ADVERTISERS, SPONSORS AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. Applicable law may not allow the exclusion of implied warranties, so the above exclusions may not apply to Licensee. o9 AND ITS SUBSIDIARIES, AFFILIATES, DISTRIBUTORS, PARTNERS, LICENSORS, ADVERTISERS, SPONSORS AND AGENTS DO NOT WARRANT THAT YOUR USE OF THE SAAS WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SAAS IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. LICENSEE ASSUMES ALL RESPONSIBILITY AND RISK FOR ITS USE OF THE SAAS AND ITS RELIANCE THEREON. NO OPINION, ADVICE OR STATEMENT OF o9 OR ITS AFFILIATES, DISTRIBUTORS, PARTNERS, LICENSORS, ADVERTISERS, SPONSORS OR AGENTS, WHETHER MADE ON OR THROUGH THE SAAS OR OTHERWISE, SHALL CREATE ANY WARRANTY. 6. Indemnification. 6.1 o9’s Infringement Indemnification Obligations. o9 shall defend Licensee against any claim, demand, suit, or proceeding (each a “Claim”) made or brought against Licensee by a third party, to the extent such Claim is based upon an allegation that the use of the SaaS, as permitted hereunder, infringes or misappropriates the intellectual property rights of a third party (each a “Claim Against Licensee”), and shall indemnify Licensee for any damages, attorneys’ fees and costs finally awarded against Licensee as a result of, and for amounts paid by Licensee under a court-approved settlement of, a Claim Against Licensee. 6.2 Infringement Indemnification Procedures. In the event of a Claim Against Licensee, then o9 shall, at its option, either: (i) procure for Licensee the right to continue using the SaaS; (ii) replace or modify the same so that the SaaS is comparable and non-infringing; or (iii) if neither (i) nor (ii) is available using commercially reasonable efforts, terminate this Agreement, and require Licensee to cease all further use of the SaaS. Upon termination in accordance with this Section 6.2, o9 shall refund to Licensee any prepaid fees for the SaaS not yet used as of the termination date. 6.3 Licensee’s Indemnification Obligations. Licensee shall defend o9 against any Claim made or brought against o9 by a third party alleging that any documentation, data, hardware, tools, and/or any other materials, information or intellectual property owned, leased and/or licensed by Licensee and provided to o9 (or to which o9 is provided access) infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against o9”), and shall indemnify o9 for any damages, attorneys’ fees and costs finally awarded against o9 as a result of, or for any amounts paid by o9 under a court-approved settlement of, a Claim Against o9. 6.4 General Indemnification Procedures. Each indemnified party shall promptly notify the indemnifying party of any known Claim. Failure to provide prompt notice does not relieve the indemnifying party of its obligation to indemnify, except and solely to the extent that the indemnifying party is actually prejudiced by the indemnified party’s failure to provide prompt notice. Subject to the following sentence, upon receiving notice of a Claim, the indemnifying party must assume the defense of the claim, employ counsel reasonably acceptable to the other party, and contest, pay, or settle the claim. Neither party may enter into any settlement that adversely affects the other party’s rights or interests without the other party’s prior written consent. 7. Limitations of Liability. 7.1 Exclusion of Certain Damages. EXCEPT FOR BREACHES OF CONFIDENTIALITY, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, LOSSES, COSTS OR EXPENSES OF ANY KIND, HOWEVER CAUSED AND WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, INCLUDING DAMAGES FOR INTERRUPTION OF BUSINESS, PROCUREMENT OF SUBSTITUTE GOODS, LOST PROFITS, OR THE LIKE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, COSTS OR EXPENSES. 7.2 Limitation of Liability. EXCEPT FOR BREACHES OF CONFIDENTIALITY OR A PARTY’S INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT, THE CUMULATIVE, AGGREGATE LIABILITY OF EITHER PARTY FOR ALL CLAIMS RELATED TO THIS AGREEMENT AND THE PROVISION AND/OR USE OF THE SAAS HEREUNDER WILL NOT IN ANY EVENT EXCEED THE AMOUNT PAID IN FEES BY LICENSEE UNDER THE ORDER DURING THE LAST 12 MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY CLAIM. IN NO EVENT WILL THE FOREGOING IN ANY WAY LIMIT LICENSEE’S PAYMENT OBLIGATIONS UNDER THE ORDER. 8. Term and Termination. 8.1 Term. This Agreement shall commence on the date set forth in the Order and remain in effect for the term set forth in the Order. 8.2 Termination for Breach. If either party commits a material breach of this Agreement, then the non-breaching party must notify the breaching party in writing of the specific breach and request that it be cured. If the breaching party fails to cure the breach within 30 days after receipt of notice of the breach, then the non-breaching party may terminate this Agreement without cost or penalty by sending written notice to the breaching party. 8.3 Effect of Termination. The termination of this Agreement by either party: (i) does not excuse either party from performing any duty or obligation assumed under this Agreement before termination; (ii) does not have the effect of waiving any right either party may have to obtain performance; and (iii) does not preclude the non-breaching party from pursuing any and all remedies available to it at law or equity. 8.4 Obligations Upon Termination. Immediately after termination or expiration, Licensee shall discontinue the use of the SaaS and shall certify in writing to o9 that it has complied with this provision. Within 10 days after termination or expiration, Licensee will pay all fees and other charges due under the Order through the date of termination. 8.5 Survival. Sections 3, 4, 5, 6, 7, 8.3, 8.4, 8.5 and 9 shall survive any termination or expiration of this Agreement, together with any provisions that are intended by their nature to survive any such termination or expiration. 9. Confidentiality. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of o9 includes non-public information regarding features, functionality and performance of the SaaS. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except in connection with the use of the SaaS or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document: (a) is in the public domain, other than as a result of a breach of this Agreement on the part of the Receiving Party; (b) is rightfully received from a third party not bound by any obligation of confidentiality; (c) is rightfully known to the Receiving Party, as shown by the records of the Receiving Party; or (d) is required to be disclosed by law or an authority decision or by a court of competent jurisdiction. 10. Independent Contractors. The parties are independent contractors and neither party: (i) is an agent, servant, legal representative, partner, joint venturer or employee of the other; (ii) has any authority to assume or create any obligation or liability of any kind on behalf of the other; (iii) has any authority to make any representation or warranty on behalf of the other party; or (iv) has the authority to bind the other party in any respect. 11. Governing Law; Jurisdiction and Venue. THIS AGREEMENT (AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES WITH RESPECT TO THEIR RELATIONSHIP UNDER THIS AGREEMENT) IS GOVERNED BY AND MUST BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, EXCLUDING ITS CONFLICTS OF LAWS RULES TO THE EXTENT THAT SUCH RULES WOULD APPLY THE LAW OF ANOTHER JURISDICTION, AND EXCLUSIVE OF ANY PROVISIONS OF THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. 12. Assignment. This Agreement may not be assigned by Licensee, whether by operation of law or otherwise, without o9’s prior written consent. Any unauthorized assignment will be null and void. 13. Force Majeure. Neither party shall be responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay or failure is caused by fire, flood, explosion, war, embargo, government requirement, civil or military authority, act of God, third party, or other similar unforeseeable causes beyond its reasonable control. 14. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior and contemporaneous understandings and agreements, written or oral, regarding such subject matter. In entering into this Agreement, neither party is relying upon any representations or statements of the other that are not fully expressed in this Agreement; rather, each party is relying on its own judgment and due diligence and expressly disclaims reliance upon any representations or statements not expressly set forth in this Agreement. The use of electronic or pre-printed forms, such as purchase orders or acknowledgments, is for convenience only and all terms and conditions stated thereon, except as specifically set forth in this Agreement, are void and of no effect. If you have any questions or comments regarding these Terms of Use, please contact o9.