FireHost Armor Terms of Service These Terms of Service, any other documents referenced herein and any amendments signed between the parties (collectively, the "Agreement"), govern the provision of the Solution (as defined below) by FireHost, Inc., a Delaware corporation ("FireHost" or "we") to the person or entity ("Customer") that executes and delivers a Solution Order (as defined below) for the provision of Services. BY EXECUTING AND DELIVERING THE SERVICE ORDER, CLICKING THE "I ACCEPT" BUTTON, SIGNING AN AGREEMENT THAT REFERENCES THESE TERMS OR ACCESSING OR USING ANY OF THE SERVICES, CUSTOMER EXPRESSLY AGREES TO AND CONSENTS TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. ANY AMENDMENT TO THE AGREEMENT SHALL BE MADE IN WRITING AND REQUIRE THE SIGNATURE OF BOTH PARTIES. IN THE EVENT THAT THE PARTIES SIGN A SEPARATE AGREEMENT (INCLUDING BUT NOT LIMITED TO A NEGOTIATED VERSION OF THESE TERMS) THAT DEVIATES FROM THE TERMS OF USE POSTED AT http://www.firehost.com/company/legal/tos-ARMOR, THE TERMS OF THE NEGOTIATED, SIGNED AGREEMENT SHALL CONTROL OVER THE POSTED TERMS IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY. 1. Definitions. "Agreement" means these Terms of Service together with the Privacy Policy and each Solution Order, and any other statement of work or addendum executed between the parties. "Confidential Information" means all confidential and proprietary information disclosed by a party (as "Disclosing Party") either before or after the Effective Date and marked as such (if such information is capable of being so marked) regarding Disclosing Party's products and business, that are disclosed to the other party (as "Receiving Party"), including, but not limited to, Disclosing Party's intellectual property. Confidential Information also includes any unpublished prices and other terms of service, audit and security reports, data center designs and other proprietary technology of a party or its licensors. Confidential Information does not include information (i) in the public domain at the time of delivery, (ii) subsequently published or otherwise made part of the public domain through no fault of Receiving Party or its representatives, (iii) in Receiving Party's possession at the time of disclosure and not acquired by Receiving Party directly or indirectly from Disclosing Party or its representatives on a confidential basis, (iv) that becomes available to Receiving Party on a non-confidential basis from a source not under an obligation of confidentiality to Disclosing Party, or (v) that is independently developed by Receiving Party without use of or reference to Confidential Information, as evidenced by written records maintained in the ordinary course of business. For clarification, Confidential Information includes Customer Account Data, but -- except as set forth in Section 8 – does not include Customer Services Data. "Customer Account Data" means (i) Customer's general Solution account information (including usage statistics, billing, support tickets and other use and support history), and (ii) basic contact information concerning Customer's employees or other FireHost account contacts required to establish User accounts within the FireHost customer portal, to the extent that FireHost in each case tracks and stores such data on its own separate administrative servers (such basic contact information consists of names, email addresses and telephone numbers as provided by Customer or Customer's Users during enrollment). "Customer Services Data" means the data that is transmitted to or from, stored on or otherwise processed by the Infrastructure Platform. For clarification, Customer Services Data does not mean or include Customer Account Data. "Fees" means the Recurring Fees and Non-Recurring Fees, in each case as described in this Agreement. "Recurring Fees" means those Fees set forth on a Solution Order that are due on a recurring basis throughout the Term for each month during which the Solution is used, and "Non-Recurring Fees" means those Fees set forth on a Solution Order that are due when and if a particular Service is utilized including, but not limited to, professional services, implementation fees, or custom development work. "Infrastructure Platform" means the separate third party servers and platform (for example, the Azure platform hosted by Microsoft, AWS hosted by Amazon, or GCP hosted by Google, etc.) on which Customer stores Customer Services Data pursuant to a separate agreement between the Customer (the "Infrastucture Agreement") and the relevant third party provider (the "Infrastucture Provider"). "Privacy Policy" means the policy posted at www.firehost.com/company/legal/privacy-policy, as amended from time to time, which describes how FireHost collects, utilizes, distributes and protects Customer Account Data. "Solution" means the suite of services (each, a "Service") that FireHost offers for Customer in connection with Customer's use of the Infrastructure Platform as attached to, set forth in or linked to from the Solution Order, in each case as may be modified by the terms of a Solution Order or by FireHost pursuant to Section 14.7 below. "Solution Commencement Date" means the date that Customer is first given access to the Solution. "Solution Order" means an executed order (which may occur online through either the FireHost customer portal or a FireHost partner's marketplace) that sets forth or references the Solution purchased by Customer and the Fees applicable to the Solution. "Support" means the telephone and online technical support provided by FireHost for the Solution. "Term" means the term of Customer's subscription to the Solution which shall commence upon the Solution Commencement Date and continue on a month to month basis until terminated by one of the parties pursuant to the termination provisions of this Agreement. "User" means Customer or any other person or entity that it permits to access or use the Solution, including where applicable, any separate business customers (each, an "End User") on whose behalf Customer uses the Solution. 2. FireHost Obligations. 2.1 Provision of Solution. Unless otherwise agreed in a separate agreement or written amendment to this Agreement, FireHost will not be providing Customer with hardware or use of servers for the storage of Customer Services Data, but will instead be providing Customer with the Solution in support of Customer Services Data, applications and systems separately hosted on the Infrastructure Platform. Subject to Customer's compliance with this Agreement, FireHost will provide the Solution and Support to Customer during the Term in accordance with applicable law, and subject to the individual Services descriptions set forth in Schedule A. Customer acknowledges that FireHost is neither an agent of nor responsible for the actions of the Infrastructure Provider and will not be liable for the acts or omissions, or any breach of the Infrastructure Agreement, by the Infrastructure Provider or its personnel. 3. Customer Obligations. 3.1 Use of Solution. Customer is solely responsible for (i) any use of the Solution by a User, (ii) keeping Customer's account permissions, billing, and other account information up to date using the MyFireHost.com portal, and (iii) complying with the requirements in Schedule A and using reasonable security precautions in connection with use of the Solution. Customer agrees to comply with the terms of this Agreement, make payments of Fees when due and comply with any and all laws applicable to Customer's use of the Solution. Customer must immediately notify FireHost of any unauthorized use of Customer's account or any other breach of security relating to the Solution and cooperate with FireHost's investigation of security issues or any suspected breach of these General Terms. 3.2 Regulatory Compliance. Certain aspects of the Solution may be designed to help Customer comply with regulatory guidelines that may be applicable to it. Customer is responsible for understanding the regulatory requirements applicable to its business. If Customer will use the Infrastructure Platform to transmit, process or store payment card information ("cardholder data" as defined in the current version of the Payment Card Industry Data Security Standard ("PCI DSS")), or protected health information ("PHI") as defined under the HIPAA/HITECH/Omnibus Rule regulations, Customer should disclose such intended use to FireHost prior to any such transmission, processing and/or storage. If Customer is storing, processing or transmitting cardholder data, Customer agrees upon request to execute a FireHost PCI Addendum (Armor program version) so as to allow both parties to meet any obligations under the PCI DSS. If Customer is storing, processing or transmitting PHI, Customer agrees upon request to execute a Business Associate Agreement ("BAA") (Armor program version) with FireHost, and FireHost will provide such BAA for Customer's review and signature. Customer acknowledges that the Solution has not been independently validated against any regulatory requirements (e.g. PCI DSS, HIPAA) and that FireHost is not responsible for any failure of the Infrastructure Provider or the Infrastructure Platform to comply with any of regulatory requirements set forth above. 3.3 Disabling / Self-Service Obligations. To the extent that Customer elects to remove or disable any aspect of the Solution provided by FireHost, Customer agrees that Customer and not FireHost will be responsible and liable for any security incident and/or breach that results from the removal or disabling of such aspect. FireHost may offer some aspects of the Solution with a self-service option where Customer is responsible for configuring or managing a specific aspect (each, a "Self-Service Option"). To the extent Customer opts into a Self-Service Option, Customer agrees that it and not FireHost will be responsible and liable for any security incident and/or breach that results from Customer's misconfiguration or misuse of the Self-Service Option. 3.4 Data Backup. Customer is solely responsible for ensuring that Customer Services Data residing on the Infrastructure Platform is backed up, and FireHost assumes no responsibility for the integrity or loss of Customer Services Data, and will not be liable for direct or indirect damages of any kind (including but not limited to lost profits or any other incidental or consequential damages, even if advised of the possibility of such damage) resulting from loss of Customer Services Data. 3.5 Acceptable Use Policies. Customer shall comply with the relevant acceptable use policy imposed by the Infrastructure Provider. In addition, and whether or not prohibited by the Infrastructure Provider's policies, Customer agrees that it will not use the Solution in connection with any of the following activities: (i) online gaming servers, (ii) making available online gambling sites or services, or (iii) pornography or the marketing of pornographic materials. 4. Fees and Payment Terms. 4.1 General. FireHost will invoice Customer monthly in arrears for the Recurring Fees and for any Non-Recurring Fees. Subject to any additional pricing provisions in the Solution Order, the Recurring Fees set forth in the Solution Order will remain fixed unless and until FireHost provides Customer with at least thirty (30) days prior notice of a change in its published Fees. 4.2 Due Dates. Unless otherwise agreed by FireHost, payment for the Fees is due on the invoice date. Any amount not fully paid within twenty-eight (28) days when due will bear late payment interest at the rate of the lesser of 1.5% per month or the highest rate permitted by law from the due date until paid. Customer will be liable for all costs and expenses incurred by FireHost in collecting amounts that are past due, including reasonable attorneys' fees. 4.3 Taxes. Customer agrees to be responsible for and pay, and to reimburse FireHost on request if FireHost is required to pay, any sales, use, value-added or other tax (excluding any tax that is based on FireHost's net income), assessment, duty, tariff, or other fee or charge of any kind or nature that is levied or imposed by any governmental authority on the Solution. 5. Suspension of Provision of Solution. 5.1 General. Customer acknowledges and agrees that FireHost may suspend providing the Solution, in whole or in part, upon advance written notice to Customer with respect to (i) and (ii), if (i) Customer fails to pay Fees for a period of twenty-eight (28) days after the date of the invoice, (ii) Customer fails to reasonably cooperate with FireHost's investigation of any suspected breaches of this Agreement or security concerns relating to Customer's environment, or (iii) FireHost is obligated to suspend the Solution via subpoena, court order or otherwise as required by law. Any suspension action taken by FireHost will relate only to the Solution provided by FireHost; FireHost will not impair Customer's access to the Infrastructure Platform. TO THE EXTENT FIREHOST TAKES ANY SUSPENSION ACTION AS AUTHORIZED BY THIS SECTION, IT WILL NOT BE LIABLE TO CUSTOMER OR ANY ONE CLAIMING BY OR THROUGH CUSTOMER FOR DAMAGES. 6. Term and Termination. 6.1 General. Customer's subscription for the Solution will be on a month to month basis during the Term. Customer may, at any time upon notice to FireHost, and FireHost may, upon at least ninety (90) days' prior notice to Customer, terminate Customer's subscription to the Solution and this Agreement for convenience. Customer will only be billed for the Services used and may cease use of the Solution at any time, but upon its termination of use should provide notice to FireHost as set forth in this Section 6. 6.2 Non-Renewal Notices. Customer should communicate any termination notice by entering an appropriate ticket in the MyFireHost.com portal. FireHost will communicate any non-renewal notice pursuant to the notice provisions in Section 14. 6.3 Termination for Breach. In addition to the parties rights under Sections 5, 6.1 and 6.2 either party may terminate this Agreement in the event of a material breach by the other upon no less than fifteen (15) business days prior written notice and opportunity to cure such material beach. Termination for breach will not relieve Customer of the requirement to pay Fees for the Solution subscription provided prior to the effective date of termination. 7. Maintenance. 7.1 General. Reserved. 8. Confidential Information; Data Security. 8.1 General. Each party will safeguard and keep confidential all Confidential Information of the other and will return the other's Confidential Information upon request, except to the extent further retention of such Confidential Information is necessary for a party to perform any post-termination obligations or exercise any post-termination rights under this Agreement. Each party agrees to safeguard the other's Confidential Information using measures that are equal to the standard of performance used by Receiving Party to safeguard its own Confidential Information of comparable value, but in no event less than reasonable care. Neither party will use any Confidential Information of the other party for any purpose except to implement its rights and obligations under this Agreement and as otherwise expressly contemplated by this Agreement; provided, however, that if any party or its representatives is requested or required to disclose any Confidential Information by a subpoena or court order, that party will promptly notify the other party (unless prohibited by such subpoena or order) of such request or requirement so that the other party may seek an appropriate protective order or other appropriate relief and/or waive compliance with provisions of this Agreement, and if, in the absence of such relief or waiver hereunder, a party or its representative are, in the opinion of its counsel, legally compelled to disclose Confidential Information, then that party may disclose so much of the Confidential Information as is, according to such opinion, required, without liability hereunder. 8.2 FireHost Access to Data. Customer acknowledges that in the ordinary course of the provision of the Solution, FireHost will rarely if ever have any access to or control or in any way handle Customer Services Data, including any cardholder data, PHI, personally identifiable information ("PII") or other Confidential Information that may reside within Customer Services Data, and that all access to and control of Customer Services Data will remain under Customer's exclusive administrative domain and control. Nothing in this Agreement shall imply any duty or obligation on FireHost's behalf to supervise or advise Customer on the manner in which Customer administers access to and control of Customer Services Data, and the provisions in this Section applicable to the handling of Confidential Information residing within Customer Services Data only apply to FireHost in those unlikely and extraordinary scenarios where FireHost does gain actual access to and control over Customer Services Data. FireHost does have access to limited PII (typically name, address, telephone number and email addresses for Customer's contact personnel involved in the receipt of the Solution) and similar Confidential Information to the extent included within Customer Account Data, and FireHost agrees to protect such information per the provisions in this Section 8. 9. Limited Warranty. 9.1 General. FireHost represents that it will provide the Solution in a professional manner consistent with the standards in its industry. EXCEPT FOR THIS WARRANTY, FIREHOST AND ITS LICENSORS DISCLAIM ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED RELATING TO THE SOLUTION, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. FURTHER, FIREHOST MAKES NO REPRESENTATIONS OR WARRANTIES CONCERNING, AND WILL HAVE NO LIABILITY WITH RESPECT TO, THE ACCURACY, DEPENDABILITY, PRIVACY, SECURITY, AUTHENTICITY OR COMPLETENESS OF DATA TRANSMITTED OVER THE INTERNET, OR ANY INTRUSION, VIRUS, DISRUPTION, LOSS OF COMMUNICATION, LOSS OR CORRUPTION OF DATA, OR OTHER ERROR OR EVENT CAUSED OR PERMITTED BY OR INTRODUCED THROUGH THE INTERNET OR THE INFRASTRUCTURE PLATFORM. CUSTOMER IS SOLELY RESPONSIBLE FOR IMPLEMENTING ADEQUATE FIREWALL, PASSWORD AND OTHER SECURITY MEASURES TO PROTECT CUSTOMER'S SYSTEMS, DATA AND APPLICATIONS FROM UNWANTED INTRUSION, WHETHER OVER THE INTERNET OR BY OTHER MEANS. 10. Liability Limitations. 10.1 General. EXCEPT FOR FIREHOST'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, FIREHOST AND ITS LICENSORS' CUMULATIVE LIABILITY TO CUSTOMER AND ALL OTHER PARTIES FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OF THE SOLUTION OR ANY FAILURE OR DELAY IN DELIVERING THE SOLUTION WILL NOT EXCEED THE TOTAL FEES PAID BY CUSTOMER FOR THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED. 10.2 NO CONSEQUENTIAL DAMAGES. FIREHOST AND ITS LICENSORS WILL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES, OR FOR LOST PROFITS OR LOST DATA ARISING OUT OF THE USE OR INABILITY TO USE THE SOLUTION OR ANY DATA SUPPLIED THEREWITH, OR ANY FAILURE OR DELAY IN DELIVERING THE SOLUTION, EVEN IF FIREHOST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 11. Indemnification. 11.1 By FireHost. Subject to Section 11.3, FireHost will defend, indemnify and hold Customer, Customer's affiliates or any of Customer's or their respective employees, agents or suppliers, harmless from and against any and all costs, liabilities, judgments, actions and expenses (including, but not limited to, reasonable attorneys' fees and fees of experts) (collectively, "Losses") arising out of any threatened or actual third party claim, suit, action, arbitration or proceeding (collectively, "Claims") arising out of or relating to (i) FireHost's gross negligence or willful misconduct, or (ii) a claim that the Solution as provided by FireHost under this Agreement infringes upon the United States patent or copyright of a third party. 11.2 By Customer. Subject to Section 11.3, Customer will defend, indemnify and hold FireHost, its affiliates or any of its or their respective employees, agents or suppliers, harmless from and against any and all Losses arising out of or relating to Claims arising out of or relating to (i) Customer's gross negligence or willful misconduct, or (ii) Customer's violation of the law in connection with its use of the Solution. 11.3 Procedure. To obtain indemnification under this Section 11, the indemnified party must (a) give indemnifying party prompt written notice of the Claim, (b) permit indemnifying party to have sole control over the defense and settlement of the Claim, and (c) as requested, provide reasonable cooperation to the indemnifying party in the defense and/or settlement of the Claim. 12. IP, Third Party Software. 12.1 IP Rights. Each party will retain all right, title and interest in and to its respective intellectual property rights (including without limitation, patents, inventions, trademarks, copyrights and trade secrets). Any intellectual property used, developed or otherwise reduced to practice by FireHost in providing the Solution will remain the sole property of FireHost and/or its licensors. Customer agrees not to use any aspect of the Solution for the purposes of developing a competing product or service. 12.2 Third Party Software. Customer acknowledges that FireHost will use third party software in the provision of the Solution, and agrees to abide by the terms and conditions of any applicable end user licenses or other agreements relating to use of such software. 13. Beta Services. 13.1 General. Reserved. 14. Miscellaneous. 14.1 API License. To the extent the Solution now or in the future includes a license to a FireHost application program interface ("API") and any sample code or scripts ("Sample Code"), Customer's use of the API, Sample Code and any related documentation is subject to the separate license located at http://www.firehost.com/company/legal/api-license, the terms of which are incorporated herein by reference. 14.2 Insurance. FireHost will, at its own expense, obtain and maintain insurance of a type and amount as may be reasonable to protect its interests and obligations connected with performance under this Agreement. FireHost will, within thirty (30) days of Customer's written request, provide Customer with a certificate of insurance evidencing such coverage. Maintenance of such insurance will in no way expand or limit FireHost's liability hereunder. 14.3 Force Majeure. FireHost will not be deemed to be in breach of this Agreement and will have no liability hereunder to the extent its obligations are delayed or prevented by any reason of any act of God, war, terrorism, fire, natural disaster, accident, riots, acts of government, failure of or defects within the Infrastructure Platform, failure of any transportation or communication system, non-performance of any of Customer's agents or Customer's third party providers (including, without limitation, the failure or performance of common carriers, interchange carriers, local exchange carriers, internet service providers, suppliers, subcontractors) or any other cause beyond FireHost's reasonable control. 14.4 Marketing. Upon execution of the initial Solution Order, Customer agrees that FireHost may make immediate mention of Customer's status as a client in reasonable and acceptable marketing collateral, and on any FireHost website solely owned and operated by FireHost. 14.5 Notices. Except to the extent that notices may be sent by electronic mail as specifically set forth in this Agreement, notices under this Agreement will be sufficient only if (i) mailed by certified or registered mail, return receipt requested, (ii) sent by internationally recognized overnight carrier or (iii) personally delivered. Notices will be deemed delivered upon receipt by the other party. Notices to Customer will be sent to the mailing address then set forth on the account tab in Customer's MyFireHost.com portal. Notices to FireHost will be sent to FireHost, Inc., 2360 Campbell Creek, Suite 525, Richardson, TX 75082, Attn: Legal. Either party may change its notice address from time to time by written notice to the other (Customer may also change Customer's notice address through updates to Customer's account information on Customer's MyFireHost.com portal). 14.6 Survival. The provisions of Sections 1, 9, 10, 11, 12, and 14.3-14.12 will survive any termination or expiration of this Agreement. 14.7 Modification. FireHost may, upon at least thirty (30) days prior notice to Customer, modify the description of the Solution (as such description is attached to, set forth in or linked to from the Solution Order), to reflect changes and adjustments to the Solution developed by FireHost over time. 14.8 Authority. Customer acknowledges and agrees that FireHost and its partners' systems may allow Customer's Users authorized by Customer to purchase extension of the Solution coverage without the signed execution of a Solution Order, and that this Agreement, as modified by the Solution Order, will apply to any such extended Solution coverage so purchased. The individual signing for Customer acknowledges that he/she has authority to enter into this Agreement on behalf of the Customer and to order the Solution through a Solution Order. This Agreement binds any of Customer's authorized Users, as well as its heirs, executors, successors, and assigns. 14.9 Assignment. This Agreement may not be assigned by Customer without the prior written consent of FireHost, which will not be unreasonably withheld or delayed. This Agreement binds any of Customer's authorized Users, as well as Customer's successors, and assigns. 14.10 Disputes. Any dispute between the parties arising under this Agreement that has not been settled by negotiation will be submitted to mediation administered by the American Arbitration Association ("AAA") under its Commercial Mediation Procedures. The parties agree to share equally the mediator's fee and administrative costs of mediation but will bear their own attorney fees, expenses, and costs. If the parties are unable to settle their dispute by mediation, the parties agree to submit their dispute to binding arbitration before a sole arbitrator in accordance with the Expedited Procedures of the AAA's Commercial Arbitration Rules. Arbitration will take place in a mutually agreeable location, and if the parties cannot agree on a location then the arbitration will be held in the State and County where the party defending the arbitration has its US headquarters. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. The parties agree to share equally the arbitrator's fee and administrative costs of arbitration but will bear their own attorney fees, expenses, and costs. Nothing in this Section will prevent either party from resorting to judicial proceedings if: (a) good faith efforts to resolve the dispute under these procedures have been unsuccessful; or (b) interim relief from a court is necessary to prevent serious and irreparable injury to one party or to others. 14.11 Governing Law; Jurisdiction. This Agreement is governed by the laws of the State of Texas, excluding its conflicts of laws principles. Subject to the arbitration provisions set forth above, each party submits to the exclusive jurisdiction of the federal and state courts of the State of Texas; provided, however, that FireHost will have the right to institute judicial proceedings against Customer or anyone acting by, through or under Customer, in other jurisdictions in order to enforce FireHost's rights hereunder through reformation of contract, specific performance, injunction or similar equitable relief. 14.12 General. This Agreement constitutes the entire understanding between FireHost and Customer with respect to subject matter hereof. Any terms and conditions set forth in any Customer purchase order which differ from, conflict with, or are not included in this Agreement, will not become part of this Agreement. Revision Date: July 6, 2015