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Software Services And Subscription Agreement

Last updated: March 5, 2018

We may update this Agreement and any associated policies from time to time. When we change this Agreement or any such policies in a material way, we will post a notice on our website along with the updated Agreement or policy.

THIS ONSCALE SOFTWARE SERVICES AND SUBSCRIPTION AGREEMENT IS A BINDING CONTRACT between OnScale, Inc. (hereinafter, “Company,” or “we”) and you, and if applicable, between Company and the other legal entity that you represent. You or the entity you represent are referred to in this Agreement as “Customer” or “you”. This Agreement refers to Company and Customer each individually as a “party” and collectively as the “parties”. If you are entering into this Agreement as an individual, you represent and warrant that you are over the age of eighteen (18) and possess the legal capacity to bind yourself to its terms and conditions. If you are entering into this Agreement on behalf of a business organization or entity, you represent and warrant that you are duly authorized to bind that entity to this Agreement.

1. AGREEMENT.

As referred to herein, “Agreement” means this ONSCALE SOFTWARE SERVICES AND SUBSCRIPTION AGREEMENT, together with all policies and addenda that are incorporated herein by reference, including the Acceptable Use Policy and Privacy Policy. This Agreement sets forth the terms and conditions that apply to the Software Services.

2. SERVICES.

Subject to the terms and conditions of this Agreement, and during the time that you have paid all applicable fees, Company grants to you a non-exclusive, non-transferable limited right to access and use the Software Services for finite element modeling, simulation and analysis. All services that we make available to you through our Software Services Website at https://onscale.com, including any related support services or Documentation we may provide, are collectively referred to in this Agreement as the “Software Services”. The Software Services, including all Cloud Servers provided by third party cloud providers, are unmanaged. We reserve the right to modify the Software Services at any time and without advance notice. Content used in connection with a prior version of the Software Services may be incompatible with a subsequent version of the Software Services.

3. TERM.

The term of this Agreement (“Term”) will begin when the first of the following occurs:

(a) you complete the registration process for your Software Services account online at https://OnScale.com/signup and accept the terms and conditions in this Agreement by placing a check mark in the box indicating your acceptance and pressing continue;

(b) both parties have signed a signature page, if any, for this Agreement; or

(c) you use the Software Services.

This Agreement will remain in effect until terminated by you or us in accordance with Section 4 or 5.

4. SUSPENSION AND TERMINATION BY COMPANY.

(a) FOR CAUSE. We may immediately (and without prior notice) suspend or terminate all or part of the Software Services by sending you a written notice of termination if one or more of the following occurs:

(i) we discover that you provided us with false information when you registered for Software Services, or that you lacked the capacity to enter into this Agreement at the time of its consummation;

(ii) we determine, in our sole discretion, that your use of the Software Services poses a threat to the security or performance of our network or to any of our customers or suppliers;

(iii) we determine, in our sole discretion, that your use of the Software Services is illegal, or that it misappropriates or infringes the property rights of a third party;

(iv) we reasonably believe that your use of the Software Services has or will subject Company to civil or criminal liability;

(v) you become the subject of an involuntary or voluntary bankruptcy or similar proceeding, or you assign all or substantially all of your assets for the benefit of creditors;

(vi) you fail to make any payment when due or if your credit card is declined;

(vii) you use cloud resources in an attempt to gain unauthorized access to computer systems (i.e., “hacking”); or

(viii) you breach any of the other terms and conditions in this Agreement, including the AUP.

(b) WITHOUT CAUSE. We may suspend or terminate all or part of the Software Services in the absence of cause by providing you with thirty (30) days’ advance notice of the termination in accordance with the notice provisions in Section 30 below.

5. TERMINATION BY YOU.

You may terminate this Agreement at any time and for any reason (or no reason at all) by providing us with a written notice of termination in accordance with the notice provisions in Section 30 below and closing your Software Services account online at https://onscale.com/account.

6. EFFECT OF SUSPENSION AND TERMINATION.

(a) SUSPENSION. The Software Services will be unavailable in whole or in part during any suspension, and you may not have access to your data. Fees may continue to accrue during a suspension, and we may charge you a reinstatement fee following any suspension of your Software Services.

(b) TERMINATION. Effective immediately upon the termination of this Agreement, the Software Services will no longer be available and we will permanently erase all data stored on the Infrastructure. All Confidential Information and Documentation, including all copies thereof, must be returned to us or permanently destroyed. On our written request, you agree to certify in writing that you are no longer in possession of any Confidential Information or Documentation. All terms of this Agreement that should by their nature survive termination will survive, including, Sections 6 (Effect of Suspension; Termination), 8 (Fees), 9 (Taxes), 14 (Security), 15 (Fees for Unauthorized Use), 16 (Disclaimers), 17 (Limitation of Damages), 18 (Indemnification), 19 (Backups), 25 (Governing Law; Venue; Jurisdiction; Waiver of Jury Trial), 26 (Intellectual Property), 30 (Notices), 31 (Representations), 32 (Neutral Interpretation), 34 (Confidentiality), 35 (Assignment; Resale; Binding Effect); 38 (Definitions), 39 (Miscellaneous), and 40 (Scope of Agreement; Entire Agreement).

7. AMENDMENTS OR CHANGES.

(a) WRITTEN REQUIREMENT. Except as provided in this Section 7, no amendment or change to this Agreement will be effective unless the amendment is in writing and signed by both parties.

(b) ONLINE POSTING. Company may amend this Agreement by posting the modified version online at https://www.onscale.com/software-services-agreement.

(c) EFFECTIVE. Amendments to this Agreement will become effective upon the earliest occurrence of any of the following events:

(i) your acceptance of the amended terms by clicking an online confirmation or acceptance button, or

(ii) by clicking an acceptance link provided in an email we send to you; or

(iii) thirty (30) days after we provide you with notice of the amendment in accordance with the notice provisions in Section 30.

(d) DISAGREEMENT. Additionally, if you do not agree with any amendment or change, you must stop using the Software Services and contact us to retrieve your data or content.

(e) ACCEPTANCE. Your continued use of the Software Services after the effective date of an amendment or change to this Agreement will be deemed your acceptance of that amendment and any associated modifications and additional terms and conditions.

8. FEES AND BILLING.

(a) PRICE AND FEE SCHEDULE. You agree to pay all fees for the Software Services at the applicable rates set forth online at https://onscale.com/pricing or in a separate agreement executed by you and Company. All fees for Software Services are payable in U.S. dollars in advance.

(b) PAYMENT ARRANGEMENTS. If payment arrangements have been established using a credit card, any fees may be charged to your credit card without invoice. Alternatively, we may invoice you for such fees prior to your use of the Software Services, but, you will not have access to the Software Services until your payment has been successfully processed. In the event you elect to use a credit card for payment of any fees, in our discretion, we may charge your credit card once per month or more frequently if we determine it is warranted by the fees you incur. In our sole discretion, we may also place an authorization hold on your credit card at any time for fees that you have already incurred. The calculation of all fees for Software Services will be based solely on our records and data. All computing overheads, including storage and bandwidth, will be included in the calculation of your fees.

(c) CLOUD SERVER CONFIGURATIONS. Fees for the Software Services based upon a particular Cloud Server Configuration will begin to accrue when the Cloud Server Configuration is associated with your Software Services account and you begin to use the Software Services in association with your selected Cloud Server Configuration. You are responsible for all fees relating to your use of the Software Services associated with your selected Cloud Server Configuration and for any fees that you incur until they are deactivated.

(d) DISPUTED FEES. Fees that are not disputed within sixty (60) days of the date on which they are charged will be conclusively deemed accurate. If for any reason we cannot process your credit card or you fail to make a payment, you agree to pay our costs of collection, including all reasonable attorneys’ fees and expenses. We may charge interest on overdue fees at the lesser of 1.5% per month or the maximum rate permitted by law. It is your sole responsibility to provide accurate billing contact information and to notify us of any changes to your billing contact information in accordance with the notice provisions in Section 30 below.

(e) FEE INCREASES. We may increase your fees for the Software Services on thirty (30) days’ prior notice sent in accordance with the notice provisions in Section 30 and by posting the increased fees on our Website at https://onscale.com/pricing.

(f) PAYMENT PROCESSING. Credit card payments made in accordance with Section 8(b) will be processed by a third-party card processing company who is subject to a written agreement with us. That agreement requires the card processing company to use adequate security and confidentiality measures to protect your payment information. All payment information that you provide through the Software Services Website will be transmitted directly to the card processing company over a secure connection. We will not record your credit card number, expiration date, or CVV number. However, this information may be stored by the card processing company in the normal course of its business, or as required or authorized by law, statute, regulation, or Payment Card Industry standard.

(g) We may elect, in our sole discretion, to bill you for the Software Services in accordance with a pre-existing billing arrangement that you have with us for another service we provide under a separate agreement. If we do not agree in writing to bill your Software Service fees in accordance with a pre-existing billing arrangement between us, if any, you must submit and keep on file a valid credit card that we will process to pay your Software Service fees no less than once per month as provided in this Section 8.

9. TAXES.

You agree to pay all taxes on the Software Services, if any, that we are required by law to collect, including transaction, local, value-added, sales, and service taxes. All fees specified on our Website at https://onscale.com/pricing are exclusive of any such taxes, duties, levies or fees. In no event will you be responsible for any taxes on our income. If you are exempt from paying taxes on the Software Services, you agree to provide us with reasonable proof of your tax exempt status.

10. DATA MANAGEMENT AND SECURITY.

(a) ACCESS, USE, & LEGAL COMPULSION. Unless we receive your prior written consent, Company: (i) will not access or use data in electronic form collected through the Software Services from your customers or other third parties, or collected or accessible directly from Customer, (collectively, “Project Data”) other than as necessary to facilitate the Software Services; and (ii) will not give any third party access to Project Data. Notwithstanding the foregoing, Company may disclose Project Data as required by applicable law or by proper legal or governmental authority. Company will give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.

(b) CUSTOMER’S RIGHTS. Customer possesses and retains all right, title, and interest in and to Project Data, and Company’s use and possession thereof is solely as Customer’s agent. Customer may access and copy any Project Data in Company’s possession at any time. Company will facilitate such access and copying after Customer’s request.

(c) RETENTION & DELETION. Company will retain any Project Data in its possession until Erased (as defined below) pursuant to this Subsection 10(c). Company will Erase: (i) any or all copies of Project Data promptly after Customer’s written request; and (iii) all copies of Project Data no sooner than five (5) business days after termination of this Agreement and no later than fifteen (15) business days after such termination. Notwithstanding the foregoing, you may at any time instruct Company to retain and not to Erase or otherwise delete Project Data, provided Customer may not require retention of Project Data for more than five (5) business days after termination of this Agreement. Upon Customer’s request, promptly after Erasure pursuant to this Subsection 10(c), Company will certify such Erasure in writing to Customer. (“Erase” and “Erasure” refer to the destruction of data so that no copy of the data remains or can be accessed or restored in any way.)

(d) INDIVIDUALS’ ACCESS. Company will not allow any of its employees to access Project Data, except to the extent that an employee needs access in order to facilitate the Services and executes a written agreement with Company agreeing to comply with Company’s obligations set forth in this Section 10. Company will perform a background check on any individual it gives access to Project Data. Such background check will include, without limitation, a review of the individual’s criminal history, if any. Company will not grant access to Project Data if the background check or other information in Company’s possession would lead a reasonable person to suspect that the individual has committed identity theft or otherwise misused third party data or that the individual presents a threat to the security of Project Data.

(e) COMPLIANCE WITH LAW & POLICY. Company will comply with all applicable federal and state laws and regulations governing the handling of Project Data.

(f) LEAKS. Company will promptly notify Customer of any actual or potential exposure or misappropriation of Project Data (any “Leak”) that comes to Company’s attention. Company will cooperate with Customer and with law enforcement authorities in investigating any such Leak, at Company’s expense. Company will likewise cooperate with Customer and with law enforcement agencies in any effort to notify injured or potentially injured parties, and such cooperation will be at Company’s expense, except to the extent that the Leak was caused by Customer. The remedies and obligations set forth in this Subsection 10(f) are in addition to any others Customer may have.

(g) INJUNCTION. Company agrees that violation of the provisions of this Section 10 might cause Customer irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Customer will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.

11. ACCEPTABLE USE POLICY.

“Acceptable Use Policy” and “AUP” each mean the acceptable use policy posted at https://www.onscale.com/acceptable-use-policy on the day your Term commences, as it may be amended by us in accordance with the amendment procedures described in Section 7 above. The AUP is part of this Agreement. You are required to use the Software Services in accordance with the AUP. You agree to cooperate with any reasonable investigation by us regarding an actual or potential violation of the AUP.

12. PRIVACY POLICY.

“Privacy Policy” means the privacy policy posted at https://onscale.com/privacy-policy on the day your term commences, as it may be amended by us in accordance with the amendment procedures described in Section 7 above. The Privacy Policy is part of this Agreement. You are required to use the Software Services in accordance with the Privacy Policy.

13. SERVICE LEVEL AGREEMENT.

When we use the term “Service Level Agreement” or “SLA” anywhere in this Agreement, we are referring to the service level terms set forth in this Section 13. We will use commercially reasonable efforts to make the Software Services available 99% of the Service Year. ”Service Year” means the three hundred sixty five-day period immediately preceding a claim for a service credit.

(a) SERVICE UNAVAILABILITY. Due to the nature of our pricing structure, we do not provide service credits. In the event there is a failure in any associated service due to downtime associated with third party cloud providers, you will not be charged for that compute time and the compute time will not be deducted from your available time bundle.

(b) DOWNTIME. The Software Services will not be available from time to time. Such downtime may be the result of unavailability caused by one or more of the following: (i) maintenance, a suspension, or a termination of the Software Services; (ii) the failure of servers or services outside of a datacenter on which the Software Services are dependent, including, but not limited to, inaccessibility on the Internet that is not caused by our Infrastructure or network providers; (iii) a force majeure event such as an act of God, act of war, act of terrorism, fire, governmental action, labor dispute, and any other circumstances or events not in our direct control; (iv) an attack on our Infrastructure, including a denial of service attack or unauthorized access (i.e., hacking); (v) unavailability not reported by you within five (5) of the days of the date on which the Uptime Percentage dropped below 99%; (vi) your use of a separate Company service that is not subject to this SLA; (vii) unavailability that results from the failure of individual Cloud Servers or Cloud Server Configurations and that is not attributable to an event causing unavailability to all customers using the Software Services; or (viii) unavailability that is caused by your breach of this Agreement.

(c) LIMITATION. THE TERMS DESCRIBED IN THIS SLA ARE YOUR SOLE AND EXCLUSIVE REMEDY FOR THE UNAVAILABILITY OF THE SOFTWARE SERVICE.

14. SECURITY.

Except as expressly provided in this Agreement, you acknowledge that you bear sole responsibility for the security of the Software Services.
You agree to implement security measures that are commercially reasonable for your use of the Software Services, including encryption technologies, password and user ID requirements, and procedures regarding the application of security patches and updates.

NEITHER WE NOR ANY OF OUR EMPLOYEES, AGENTS, REPRESENTATIVES, SERVICE SUPPLIERS OR LICENSORS WILL BE LIABLE FOR UNAUTHORIZED ACCESS (I.E., HACKING) INTO THE CLOUD SERVERS OR YOUR TRANSMISSION FACILITIES, PREMISES OR EQUIPMENT, OR FOR UNAUTHORIZED ACCESS TO DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THEREON, UNLESS AND ONLY TO THE EXTENT THAT THIS DISCLAIMER IS PROHIBITED BY APPLICABLE LAW.

15. FEES FOR UNAUTHORIZED USE.

You are required to pay all fees for Software Services accessed through your account, including all fees resulting from unauthorized use.

16. DISCLAIMERS.

(a) ALL GOODS AND SERVICES ARE PROVIDED “AS-IS”. EXCEPT AS EXPRESSLY REQUIRED BY LAW WITHOUT THE POSSIBILITY OF CONTRACTUAL WAIVER, WE AND OUR SERVICE SUPPLIERS AND LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. YOU ARE SOLELY RESPONSIBLE FOR THE SUITABILITY OF ALL GOODS AND SERVICES CHOSEN AND FOR DETERMINING WHETHER THEY MEET YOUR CAPACITY, PERFORMANCE AND SCALABILITY NEEDS.

(b) WE AND OUR SERVICE SUPPLIERS AND LICENSORS DO NOT WARRANT THAT THE SOFTWARE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, COMPLETELY SECURE, OR THAT ALL DEFECTS WILL BE CORRECTED. YOU ACKNOWLEDGE THAT WE DO NOT CONTROL OR MONITOR THE TRANSFER OF DATA OVER THE INTERNET, AND THAT INTERNET ACCESSIBILITY CARRIES WITH IT THE RISK THAT YOUR PRIVACY, CONFIDENTIAL INFORMATION AND PROPERTY MAY BE LOST OR COMPROMISED.

17. LIMITATION OF DAMAGES. EXCEPT AS EXPRESSLY REQUIRED BY LAW WITHOUT THE POSSIBILITY OF CONTRACTUAL WAIVER:

(a) NEITHER WE NOR ANY OF OUR EMPLOYEES, AGENTS, REPRESENTATIVES, SERVICE SUPPLIERS, OR LICENSORS, WILL BE LIABLE FOR ANY PUNITIVE, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES, OR FOR ANY LOST PROFITS, LOST DATA, LOST BUSINESS, LOST REVENUES, DAMAGE TO GOODWILL, LOST OPPORTUNITIES OR LOSS OF ANTICIPATED SAVINGS, EVEN IF ADVISED OF THE POSSIBILITY OF SAME, AND REGARDLESS OF WHETHER THE CLAIMS ARE BASED IN CONTRACT, TORT, STRICT LIABILITY, INFRINGEMENT, OR ANY OTHER LEGAL OR EQUITABLE THEORY; AND

(b) THE AGGREGATE LIABILITY OF US AND OUR EMPLOYEES, AGENTS AND REPRESENTATIVES TO YOU UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, WILL NOT EXCEED THE TOTAL AMOUNT YOU ACTUALLY PAID TO US FOR THE SOFTWARE SERVICES DURING THE THREE-MONTH PERIOD IMMEDIATELY PRECEDING THE MONTH IN WHICH THE FIRST EVENT GIVING RISE TO YOUR CLAIM(S) OCCURRED.

18. INDEMNIFICATION.

You agree to indemnify, defend and hold Company and its employees, agents, shareholders, officers, directors, successors and assigns harmless from and against any and all claims, damages, liabilities, costs, settlements, penalties and expenses (including attorneys’ fees, expert’s fees and settlement costs) arising out of or relating to any suit, action, proceeding, arbitration, subpoena, claim or demand brought or asserted by a third party pursuant to any theory of liability against Company arising out of or relating to any one or more of the following: (i) a breach by you of this Agreement; (ii) the use of the Software Services by you or your end users, or any Content or information on the Software Services; (iii) the alleged or actual infringement or misappropriation of any intellectual property right or other proprietary right by you, or by your agents, representatives or end users; (iv) your relationship with the manufacturer of any software installed or stored on the Software Services; or (v) your failure to use reasonable security precautions. We will provide you with written notice of the existence of any basis for indemnification and we will select our defense counsel. You will have the right to approve any settlement, but you may not unreasonably withhold your approval. You agree to indemnify us from all costs, expenses and liabilities as they become due.

19. BACKUPS.

Notwithstanding anything in this Agreement to the contrary, you are solely responsible for backing up all Content and Data associated with your use of the Software Services. You agree to independently create and maintain outside of the Software Services a current backup copy of all content stored on the Cloud Servers.

20. SOFTWARE.

(a) LIMITED ACCESS. We will provide you with limited access to certain software products as part of the Software Services.

(b) WE MAKE NO REPRESENTATIONS OR WARRANTY WHATSOEVER REGARDING ANY SOFTWARE PRODUCT OR RELATED SUPPORT SERVICES THAT WE MAY PROVIDE AND, AS BETWEEN YOU AND US, SUCH PRODUCTS AND RELATED SUPPORT SERVICES ARE PROVIDED “AS IS.”

(c) NO GRANT OF RIGHTS. You are not granted any title or intellectual property rights in or to any software provided as part of the Software Services, and you may only use that software in connection with the Software Services as permitted under this Agreement. Your acceptance or use of software provided as part of the Software Services is deemed an acceptance by you of the license or other agreement that governs the use of that software.

(d) NO COPYING OR MODIFICATION. You shall not (i) copy any software; (ii) remove, modify, or obscure any copyright, trademark or other proprietary rights notices that appear on any software or appear during its use; or (iii) reverse engineer, decompile or disassemble any software.

(e) CLOUD PROVIDER AGREEMENTS. In addition to the other terms in this Agreement, your use of any specific cloud provider will be governed by the terms and conditions of use and service level agreement associated with that cloud provider. Updated copies of the relevant agreements from the various cloud providers used for delivery of the Software Services can be accessed at the specific cloud provider’s website.

21. RESTRICTIONS.

You agree not to:

(a) copy or use the Software in any manner except as expressly permitted in this Agreement;

(b) transfer, sell, rent, lease, distribute, or sublicense the Software;

(c) use the Software Services for providing time-sharing services, service bureau services or as part of an applications services provider or software as a service offering for third parties;

(d) reverse engineer, disassemble, decompile or otherwise attempt to derive source code from the Software, in whole or in part, nor will you use any mechanical, electronic or other method to trace, decompile, disassemble, or identify the source code of the Software or encourage others to do so, except to the limited extend, if any, that applicable law permits such acts notwithstanding any contractual prohibitions, provided, however, before you exercise any rights that you believe you are entitled to based on mandatory law, you shall provide us with at least thirty (30) days prior written notice of your intent and provide all reasonably requested information to us to allow us to assess your claim and, at our sole discretion, to provide alternatives that reduce any adverse impact on Company’s intellectual property or other rights, including termination of your use of the Software Services.

(e) alter or remove any proprietary notices associated with the Software or the Software Services;

(f) make available to any third party any analysis of the results of operation of the Software Services, including benchmarking results, without the prior written consent of Company;

(g) allow access or permit use of the Software Services by any users other than you;

(h) create, develop, license, install, use, or deploy any third party software or services to circumvent, enable, modify or provide access, permissions or rights which violate the technical restrictions associated with the Software and the Software Services; or,

(i) modify or create derivative works or competing products based upon the Software or your use of the Software Services.

22. MAINTENANCE; SERVICE MODIFICATIONS AND DISCONTINUANCE.

In addition to our right to suspend or terminate the Software Services in accordance with Section 4 , we may suspend all or part of the Software Services without liability or prior notice to you (i) in order to maintain (i.e., modify, upgrade, patch, or repair) our Infrastructure or any Cloud Servers; (ii) as we determine may be required by law or regulation; (iii) to deal with issues associated with another third party cloud provider; or (iv) as we determine to be necessary to protect our Infrastructure and customers from unauthorized access or an attack on the Software Services. Notwithstanding the foregoing, we will endeavor in good faith to provide you with advance notice of any suspension or termination under this Section 22 in accordance with the notice provisions in Section 30 and we will provide you with notice of the suspension or termination as soon as it becomes practicable for us to do so.

23. SUPPORT.

Unless negotiated in a separate support agreement, the Software Services will be provided without live support. Technical support will be limited to the online resources we make available to you on the Software Services Website. You may direct questions regarding your billing to us at billing@OnScale.com. NO SUPPORT, ADVICE OR INFORMATION RELATING TO THE SOFTWARE SERVICES THAT YOU OBTAIN FROM COMPANY OR FROM ANY THIRD PARTY, OR THAT YOU OBTAIN THROUGH THE SOFTWARE SERVICES, WILL CREATE ANY WARRANTY THAT IS NOT EXPRESSLY WRITTEN IN THIS AGREEMENT.

24. HIGH RISK USE.

You may not use the Software Services for any application where a failure of those Software Services could result in death, serious injury, environmental damage or property damage. Examples of prohibited uses include medical life support devices, water treatment facilities, nuclear facilities, weapons systems, chemical facilities, mass transportation, aviation and flammable environments. You acknowledge that we make no assurances that the Software Services are suitable for any high-risk use.

25. GOVERNING LAW; VENUE; JURISDICTION; WAIVER OF JURY TRIAL.

The laws of the State of New York, without reference to its choice of law principles, govern this Agreement and any claims arising out of or relating to this Agreement or our relationship. All disputes and controversies arising out of or relating to this Agreement or our relationship must be resolved in the state and federal courts in the city, county and state of New York, and each of us irrevocably consents to the exclusive venue and personal jurisdiction of those courts for the resolution of such disputes and waives all objections thereto. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY IRREVOCABLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PARTIES’ RELATIONSHIP.

26. INTELLECTUAL PROPERTY.

Except for the rights provided in this Section 26, this Agreement does not convey to either of us any ownership right or license to use, sell, exploit, copy or further develop the other party’s Confidential Information (as defined in Section 34) or intellectual property, including patents, copyrights, trademarks, trade names and trade secrets. We have the exclusive right and title to any intellectual property developed by us during and in connection with providing the Software Services to you.

(a) COMPANY CONTENT. The Software Services may include various utility and deployment scripts, customizations to templates, code extending the functionality of third-party applications licensed to us, printed and electronic Documentation, and other data that we have or may develop at our own expense before and during the Term (the “Company Content”). Subject to your compliance with this Agreement, we grant to you a limited, non-exclusive, non-transferable, worldwide, royalty-free license to use Company Content during the Term solely to access and use the Software Services in accordance with the terms and conditions of this Agreement. You may not translate, reverse engineer, decompile, disassemble, rent, lease, assign, transfer, redistribute, or sublicense any Company Content.

(b) COMPANY TRADEMARKS. Subject to our prior written approval as to form, content, use, and appearance, you may only use our trademarks, service marks, service or trade names, logos, and other designations in accordance with any trademark guidelines that we may publish on the Software Services Website from time to time. You agree that we may use your name and company logo on our user list and web site, and link to your website.

(c) FEEDBACK. Customer may choose to, or Company may invite Customer to, submit comments or ideas about the Company Service, including without limitation about how to improve the Company Service or other Company products or solutions (“Ideas”). By submitting an Idea to Company, Customer agrees that such disclosure is gratuitous, unsolicited and without restriction and will not place Company under any fiduciary or other obligation, and that Company is free to use the Idea without any compensation to Customer, and/or to disclose the Idea on a non- confidential basis or otherwise to anyone.

27. GOVERNMENT RIGHTS.

With respect to the procurement of any Software Services by or for the U.S. Government, any software provided in connection with the Software Services is deemed to be “commercial computer software” as defined in the FAR and DFARS. The Government will receive no greater than restricted rights as provided in FAR 52.227-14, FAR 52.227-19(c) (1)-(2) (Jun. 1987), DFAR 252.227-7013(c) (1) (ii) (Oct. 1988), DFAR 252.221-7015(c) (May 1991), DFAR 252.227-7014, or DFAR 252.227-7018, as applicable or amended. In addition, the Government will receive no greater than limited rights as provided in FAR 52.227-14, DFAR 252.227-7015, DFAR 252.227-7018, or DFAR 252.227-7013, as applicable or amended. All computer software and technical data were developed exclusively at private expense by Company or its third-party licensors or suppliers. The use of all computer software, Documentation, and technical data is further restricted in accordance with the terms of this Agreement.

28. RELATIONSHIP OF THE PARTIES.

We on one hand, and you on the other, are each independent parties. This Agreement and any transaction under it does not create an agency, joint venture, or partnership between you and us. We do not have a landlord-tenant relationship with you, and we are not your bailee or warehouseman with respect to any data or Content. You have no right to access our premises or data centers and no right to possess or own any IP address, software, server hardware or other equipment included in the Software Services.

29. IP ADDRESSES.

Any public or private IP address allocated for you to use as a part of the Software Services will remain allocated to you until (i) you release the IP address using the Software Services portal; (ii) your Software Services are terminated for any reason; or (iii) we decide to change any IP address, which we may do at any time and in our sole discretion by providing you with five (5) days’ prior notice of the change in accordance with the notice provisions in Section 30 below. Upon termination of this Agreement, you may no longer use any IP addresses or address blocks that we provided for your use in connection with the Software Services.

30. NOTICES.

(a) FROM US. Except as otherwise provided herein, notices we send to you under this Agreement will be sent by email to the email address included in your Software Services profile at the time we send our notice. You are responsible for keeping your email address current and accurate at all times. Any notice we send to the then-current email address in your Software Services profile will be deemed to be received when it is sent even if you do not actually receive it.

(b) FROM YOU. Except as otherwise provided herein, notices you send to us under this Agreement must be in writing and sent at your own cost either (i) by email to billing@onscale.com; or (ii) by certified mail, return receipt requested, or nationally recognized courier (e.g., FedEx or U.P.S.) with a signature required to the following address:

ONSCALE, INC. 770 Marshall Street, Suite 200, Redwood City, CA 94063

(c) WHEN EFFECTIVE. A notice under this Agreement is effective when received. An email notice under this Agreement will be deemed received when sent. All other notices will be deemed received when signed for as indicated by the signed delivery receipt.

31. REPRESENTATIONS.

You represent and warrant to us that (i) the information you provide in connection with your registration for Software Services is accurate and complete; (ii) your use of the Software Services will comply with all applicable laws, rules and regulations; (iii) you will not attempt to circumvent or disable any of the security- related, management, or administrative features of the Software Services; (iv) the execution and delivery of this Agreement will not conflict with or violate any provision of your charter, by-laws or other governing documents; and (v) you have otherwise taken all necessary steps to legally execute this Agreement.

32. NEUTRAL INTERPRETATION.

This Agreement will be construed and interpreted in a neutral manner. No rule of construction or interpretation will apply against either you or us.

33. FORCE MAJEURE.

If the performance of any part of this Agreement, other than the payment of money, is prevented or delayed by reason of an act of God, act of war, act of terrorism, fire, governmental action, labor dispute or other cause beyond the performing party’s control, then that party will be excused from performance for the length of that prevention or delay.

34. CONFIDENTIALITY.

If the parties have entered into a separate agreement that includes restrictions on the use or disclosure of confidential information, such as a separate Software Services and Subscription Agreement for OnScale® Software, and one of the confidentiality provisions conflicts with a confidentiality provision in this Agreement, the provision that affords a greater level of protection to the disclosing party will control and be enforced to the maximum extent permitted by law.

(a) CONFIDENTIAL INFORMATION. As used in this Agreement, “Confidential Information” means (i) with respect to us, server configurations, software configurations, proprietary information, proprietary technology, proprietary software, audit reports, information regarding product development, information regarding Company’ datacenters, cloud providers, cloud facilitators and information contained in manuals, proposals or memoranda; (ii) with respect to you, non-public Content transmitted to or from, or stored on, the Cloud Servers; and (iii) with respect to both of us, information that is conspicuously marked as “confidential” or “proprietary,” information disclosed verbally that is designated as “confidential” or “proprietary” at the time of disclosure, and information that, by its nature, would reasonably be considered as confidential to any other person, firm or corporation.

(b) EXCLUSIONS. Confidential Information does not include (i) information that is independently developed by a non-disclosing party without the use of the disclosing party’s Confidential Information as shown by the non-disclosing party’s written business records; (ii) information that is known by a non-disclosing party prior to disclosure by the disclosing party as shown by the non- disclosing party’s written business records; or (iii) information that is or becomes generally available to the non-disclosing party or the public other than through a violation of this Agreement.

(c) RESTRICTIONS ON USE AND DISCLOSURE. A party shall not disclose the other party’s Confidential Information except (i) on a need-to-know basis, to its agents, employees and representatives who are bound by confidentiality restrictions at least as stringent as those stated in this Agreement; or (ii) as required by law, governmental regulation or requirement, court order, or subpoena, in which case and subject to applicable law, the non-disclosing party shall provide prompt notice to the disclosing party so that the disclosing party may seek a protective order or other appropriate remedy. A party shall not use Confidential Information except as required to perform its obligations under this Agreement.

(d) STANDARD OF CARE. Each party shall use the same degree of care to protect the other party’s Confidential Information that it uses to protect its own highly confidential information from unauthorized disclosure, but in no event shall either party use less than a commercially reasonable degree of care. The non-disclosing party shall notify the disclosing party promptly upon its discovery of any unauthorized use or disclosure of Confidential Information by the non-disclosing party’s employees, representatives, or agents, and will use commercially reasonable efforts to cooperate with the disclosing party to regain possession of all Confidential Information and to prevent any further unauthorized use or disclosure.

35. ASSIGNMENT; RESALE; BINDING EFFECT.

You may not assign this Agreement or resell the right to use the Software Services without our prior written consent. We may assign this Agreement at any time. This Agreement will be binding upon and inure to the benefit of all of our and your successors and assigns, who will be bound by all of the obligations of their predecessors or assignors.

36. SUBCONTRACT.

We may subcontract any portion of the Software Services to a third-party contractor, provided that we will remain fully responsible to you for the Software Services pursuant to this Agreement. Any subcontractor will be deemed to be an independent contractor and not our partner, agent, or employee. We may collect and report anonymous information regarding your use of the Software Services to our subcontractors, licensors or suppliers as required to provide you with the Software Services.

37. EXPORT CONTROL.

You shall comply with all applicable import, export and re-export control laws and regulations, including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and the sanctions maintained by the Treasury Department’s Office of Foreign Assets Control. You represent and warrant that the Services will not be accessed, downloaded, used, exported or re-exported, directly or indirectly, to any location, entity, government or person prohibited by the applicable laws or regulations of any jurisdiction, including the U.S., without prior authorization from all relevant government authorities.

38. DEFINITIONS.

(a) “Application” means software that performs a specific task, as opposed to an operating system, which runs a computer or server.

(b) “Business day” means Monday through Friday, except U.S. federal holidays.

(c) “Cloud Server” means an unmanaged Virtual Server that is running on the Infrastructure through which Company delivers its Software Services.

(d) “Cloud Server Configuration” means one or more unmanaged Virtual Servers running on the Infrastructure through which Company delivers it Software Services.

(e) “Documentation” means any written materials that we may provide to you regarding or relating in any way to the Software Services, including any printed or digital materials.

(f) “Infrastructure” means the datacenters, security devices, cables, routers, switches, hosts, compute nodes, physical servers, and other equipment that we or our third-party providers use to host Virtual Servers.

(g) “Virtual Server” means one of any number of isolated server emulations running on a single physical server located on the Infrastructure.

39. MISCELLANEOUS.

(a) HEADINGS. The headings in this Agreement are solely for convenience of reference and will not affect its interpretation.

(b) NO THIRD PARTY RIGHTS. This Agreement does not create any third-party beneficiary rights.

(c) SEPARABLE PROVISIONS. If any term, provision, covenant, or condition of this Agreement is held invalid or unenforceable in a valid legal proceeding, that term or provision may be modified only to the extent necessary for enforcement, that term or provision will be enforced to the maximum extent permitted by law, and the rest of this Agreement will remain in full force and effect and will in no way be affected or invalidated.

(d) WAIVER. No waiver of any provision of this Agreement will be effective unless in writing signed by the waiving party, and no delay or failure to exercise or enforce any right or remedy hereunder will constitute a waiver of that right or remedy. Express waiver of any right or remedy in a particular instance will not constitute a waiver of that right or remedy in any other instance, or a waiver of any other right or remedy.

(e) INCLUDING. The word “including” is a term of expansion, not limitation.

(f) TIME ZONE. Unless otherwise indicated, all references to a day are references to a calendar day and all references to a time of day are references to the time zone in New York, N.Y.

40. SCOPE OF AGREEMENT; ENTIRE AGREEMENT.

This Agreement constitutes the final and entire agreement between the parties regarding its subject matter, and it supersedes all other oral or written agreements or policies relating thereto. If there is a conflict between or among any of the parts of this Agreement, they will govern in the following order: an addendum signed by both parties, the Agreement, the AUP, the Responsibility Matrix, and the Privacy Policy. Additional or different terms in any written communication from you, including any purchase order or request for Software Services, are void.

41. ELECTRONIC CONTRACTING.

(a) Your use of the Software Services includes the ability to enter in agreements and/or to make transactions electronically.

(b) YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS.

(c) YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMSSIONS APPLIES TO ALL RECORDS RELATIONG TO ALL TRANSACTIONS YOU ENTER INTO ON THIS SERVICE, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS.

(d) In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.
We may update this Agreement and any associated policies from time to time. When we change this Agreement or any such policies in a material way, we will post a notice on our website along with the updated Agreement or policy.

 

Exhibits

Exhibit A

Software Services Website
https://onscale.com

Exhibit B

Software Services Account Online
https://onscale.com/signup

Exhibit C

Closing Your Software Services Account Online
https://onscale.com/account

Exhibit D

Online Posting of Amended Agreement

https://onscale.com/cloud-services-and-subscription-agreement

Exhibit E

Price and Fee Schedule

https://onscale.com/pricing

Exhibit F

Acceptable Use Policy

http://www.onscale.com/acceptable-use-policy

Exhibit G

Privacy Policy

http://www.onscale.com/privacy-policy

Exhibit H

Support

billing@onscale.com