ten9 Subscription Terms

BY CHECKING THE “I ACCEPT" BOX IN THE PURCHASE FLOW, YOU AND ANY ENTITY THAT YOU REPRESENT (“CUSTOMER”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THESE ten9 SUBSCRIPTION TERMS (“AGREEMENT”) AS OF THE DATE OF CUSTOMER'S FIRST DOWNLOAD OF THE LICENSED MATERIALS (THE "EFFECTIVE DATE"). CUSTOMER’S CONTINUED USE OF THE SOFTWARE OR ANY LICENSED MATERIALS PROVIDED BY ten9, INC. (OR ONE OF ITS AFFILIATES AND/OR SUBSIDIARIES, AS SPECIFICED ON AN ORDER FORM OR QUOTE) (“ten9”) SHALL ALSO CONSTITUTE ASSENT TO THE TERMS OF THIS AGREEMENT. IF CUSTOMER DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE "CANCEL" BUTTON AND THE DOWNLOAD AND INSTALLATION PROCESS WILL NOT CONTINUE. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS. IF YOU ARE EXECUTING THIS AGREEMENT ON BEHALF OF AN ORGANIZATION, YOU REPRESENT THAT YOU HAVE AUTHORITY TO DO SO.

1. LICENSE AND SUPPORT

1.1 Subject to the terms and conditions of this Agreement, ten9 hereby grants to Customer and its Affiliates (as defined below) a limited, non-exclusive, non-transferable, non-sublicensable license for Customer’s and its Affiliates’ employees and contractors to (1) internally (a) use, reproduce, modify, prepare derivative works based upon, and display the code of ten9 Enterprise Edition at the tier level selected by Customer (or set forth on a Quote (as defined below), if applicable with the specifications generally promulgated by ten9 from time to time (the “Software”), excluding Options for the Enterprise Edition unless listed on the Quote, solely (i) for its internal use in connection with the development of Customer’s and/or its Affiliates’ own software, and (ii) by the number of internal users for which Customer has paid ten9; and (b) use the documentation, training materials or other materials supplied by ten9 (the “Other ten9 Materials”); and (2) modify the Software and publish patches to the Software, solely by the number of internal users for which Customer has paid ten9. Notwithstanding anything to the contrary, Customer agrees that ten9 and/or its licensors (as applicable) retain all right, title and interest in and to all Software incorporated in such modifications and/or patches, and all such Software may only be used, copied, modified, displayed, distributed, or otherwise exploited in full compliance with this Agreement, and with a valid ten9 Enterprise Edition subscription for the correct number of User seats. The Software and Other ten9 Materials are collectively referred to herein as the “Licensed Materials.” “Affiliate” means any entity(ies) controlling, controlled by, and/or under common control with a party hereto, where “control” means the ownership of more than 50% of the voting securities in such entity. "User" means each individual end-user (person or machine) of Customer and/or its Affiliates (including, without limitation, employees, agents or consultants thereof) with access to the Licensed Materials hereunder.

1.2 Subject to the terms hereof, ten9 will provide reasonable support to Customer for the Licensed Materials as set forth athttps://about.ten9.com/support/#ten9-support-offerings, for the support plan selected and paid for by Customer. Notwithstanding anything to the contrary, in the event that Customer does not reasonably comply with written specifications or instructions from ten9’s service engineers regarding any support issue or request (including without limitation, failure to make backups of Customer’s Licensed Materials) (each, a “Support Issue”), ten9 may terminate its support obligations to Customer with respect to such Support Issue upon fifteen (15) days’ written notice if Customer does not cure such noncompliance within the notice period.

1.2.1 ten9 will use reasonable commercial efforts to respond to support questions by phone or email during the next business day at the latest. The number of support questions is not limited.

2. RESTRICTIONS AND RESPONSIBILITIES

2.1 Except as expressly authorized in Section 1.1, Customer will not, and will not permit any third party to: use the Licensed Materials for any purpose other than as specifically authorized in Section 1, or in such a manner that would enable any unlicensed person to access the Licensed Materials; use the Licensed Materials or any other ten9 software for timesharing or service bureau purposes or for any purpose other than its and its Affiliates’ own internal use (including without limitation, sublicensing, distributing, selling, reselling any of the foregoing); except as expressly permitted herein; use the Licensed Materials in connection with any high risk or strict liability activity (including, without limitation, space travel, firefighting, police operations, power plant operation, military operations, rescue operations, hospital and medical operations or the like); use the Licensed Materials or software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any privacy laws, and laws and regulations concerning intellectual property, consumer and child protection, obscenity or defamation); or use the Licensed Materials in any manner that (1) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, or libelous (including without limitation, accessing any computer, computer system, network, software, or data without authorization, breaching the security of another user or system, and/or attempting to circumvent any User authentication or security process), (2) impersonates any person or entity, including without limitation any employee or representative of ten9, or (3) contains a virus, trojan horse, worm, time bomb, unsolicited bulk, commercial, or “spam” message, or other harmful computer code, file, or program (including without limitation, password guessing programs, decoders, password gatherers, keystroke loggers, cracking tools, packet sniffers, and/or encryption circumvention programs).

2.2 Customer will cooperate with ten9 in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as ten9 may reasonably request. Customer will also cooperate with ten9 in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Licensed Materials. Customer shall maintain during the term of this Agreement and through the end of the third year after the date on which the final payment is made under this Agreement, books, records, contracts and accounts relating to the payments due ten9 under this Agreement (collectively, the “Customer Records”). ten9 may, at its sole expense, upon 30 days’ prior written notice to Customer and during Customer’s normal business hours and subject to industry-standard confidentiality obligations, hire an independent third party auditor to audit the Customer Records only to verify the amounts payable under this Agreement. If an audit reveals underpayment, then Customer shall promptly pay the deficiency to ten9 plus late fees pursuant to Section 5.2. ten9 shall bear the cost of an audit unless the audit reveals underpayment by more than 5% for the audited period, in which case Customer shall promptly pay ten9 for the reasonable costs of the audit.

2.3 Customer will be responsible for maintaining the security of Customer’s account, passwords (including but not limited to administrative and User passwords) and files, and for all uses of Customer account with or without Customer’s knowledge or consent.

3. CONFIDENTIALITY

3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Without limiting the foregoing, the Licensed Materials are ten9 Proprietary Information.

3.2 The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, ten9 may collect data with respect to and report on the aggregate response rate and other aggregate measures of the Licensed Materials’ performance and Customer’s usage of the Licensed Materials; provided that ten9 will not identify Customer as the source of any such data without Customer’s prior written consent. For the avoidance of doubt, use of a third party to host the data collected shall not be deemed a disclosure.

3.3 Each party acknowledges and agrees that the other may suffer irreparable damage in the event of a breach of the terms of Sections 1.1, 2.1 or 3.2 of this Agreement and that such party will be entitled to seek injunctive relief (without the necessity of posting a bond) in the event of any such breach.

3.4 Both parties will have the right to disclose the existence of the relationship between the parties, but not the terms and conditions of this Agreement, unless such disclosure of the Agreement terms is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers.

4. INTELLECTUAL PROPERTY RIGHTS

4.1 Except as expressly set forth herein, ten9 alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Licensed Materials and any suggestions, ideas, enhancement requests, feedback, code, or other recommendations provided by Customer, its Affiliates or any third party relating to the Licensed Materials, which are hereby assigned to ten9. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Licensed Materials, or any intellectual property rights.

4.2 Customer shall not remove, alter or obscure any of ten9’s (or its licensors’) copyright notices, proprietary legends, trademark or service mark attributions, patent markings or other indicia of ten9’s (or its licensors’) ownership or contribution from the Licensed Materials. Additionally, Customer agrees to reproduce and include ten9’s (and its licensors’) proprietary and copyright notices on any copies of the Licensed Materials, or on any portion thereof, including reproduction of the copyright notice. Notwithstanding anything to the contrary herein, certain components of the Licensed Materials, including without limitation, any component of the Licensed Materials distributed by ten9 as part of the ten9 Community Edition, are licensed by third parties pursuant to the terms of certain third party licenses described in such source code annotations.

4.3 Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all software, information, content and data provided by or on behalf of Customer or made available or otherwise distributed through use of the Licensed Materials (“Content”) and the intellectual property rights with respect to that Content. If ten9 receives any notice or claim that any Content, or Customer’s activities hereunder (including without limitation, with respect to any Content), infringes or violates the rights of a third party or any applicable law or regulation (a “Claim”), Customer will indemnify, defend and hold ten9 harmless from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Claim, as incurred. The immediately foregoing indemnity obligations are expressly conditioned on ten9 providing Customer with prompt notice of, and reasonable cooperation and sole control over the defense and/or settlement of the applicable Claim. Subject to the foregoing, ten9 may participate in the defense and/or settlement of any applicable Claim with counsel of its choosing at its own expense.

4.4 ten9 will defend, indemnify and hold Customer harmless from liability and other amounts paid or payable to unaffiliated third parties resulting from (i) the infringement or violation of any intellectual property or proprietary rights by the Licensed Materials or (ii) the violation of applicable law or regulation by ten9 in performance of its obligations hereunder, provided ten9 is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement thereof. Subject to the foregoing, Customer may participate in the defense and/or settlement of any claim that is indemnifiable by ten9 with counsel of its choosing at its own expense. The foregoing obligations do not apply with respect to portions or components of the Licensed Materials (i) not created by ten9, (ii) that are modified after delivery by ten9, (iii) combined with other products, processes or materials where the alleged infringement relates to such combination, (iv) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (v) where Customer’s use of the Licensed Materials is not strictly in accordance with this Agreement and all related documentation.

5. PAYMENT OF FEES

5.1 Unless and until ten9 and Customer have executed a quote document specifically referencing this Agreement with respect to amounts due on account of the Licensed Materials (a “Quote”, which is hereby incorporated by reference, if applicable), and unless Customer’s subscription to (and payment with respect to) the Licensed Materials has been made on Customer’s behalf by a reseller, Customer will pay ten9 the applicable fees as set forth athttps://about.ten9.com/pricing/ (the “Pricing”) for the Licensed Materials selected and/or used by Customer (the “Fees”) without any right of set-off or deduction. On each anniversary of the Effective Date, ten9 will invoice Customer (or its reseller, if applicable) with respect to any and all additional Customer Users of the Licensed Materials beyond those for whom Customer has pre-paid, as of such date (and for whom the Fees due pursuant to such invoice will be the then-current per-year User fee with respect to the year just ended, and the then current per-year User fee with respect to all subsequent years, unless otherwise agreed in writing by both parties (collectively, a “True-Up”)). For Customers that have pre-paid all Fees for multi-year subscriptions for Licensed Materials pursuant to a Quote, on each anniversary of the Effective Date during the term of this Agreement, (i) a new license key will be provided, and (ii) a True-Up will be conducted. All additional Users purchased shall be co-terminated through the end of the original Subscription period.

5.2 All payments will be made in accordance with the payment schedule and the method of payment set forth in the Pricing. If not otherwise specified, (a) ten9 will invoice Customer with respect to Fees up-front, for each term of the Customer's subscription (as applicable), and (b) payments will be due within thirty (30) days of Customer's receipt of correct invoice. Except as expressly set forth in this Agreement, all Fees paid and/or due hereunder (including any prepaid amounts) are non-refundable, including without limitation if this Agreement is terminated in accordance with Section 6 below. If Customer terminates this Agreement pursuant to Section 6.2 within 45 calendar days from receipt of the initial invoice for the Licensed Materials, ten9 will refund all Fees paid hereunder.

5.3 Any unpaid fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding US taxes based on ten9's net income) unless Customer has provided ten9 with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to ten9 on account thereof.

6. TERMINATION

6.1 This Agreement shall continue until terminated in accordance with this Section 6. Either party may terminate this Agreement upon 15 days’ written notice to the other party hereto in the event that Customer has no then-current subscription and license key with respect to the Licensed Materials.

6.2 Customer may terminate this Agreement at any time upon written notice to ten9. Either party may terminate this Agreement immediately upon 15 days’ written notice to the other party in the event of any material breach of this Agreement (including without limitation, any breach of Section 2.2 and/or failure to pay any amounts when due hereunder) by such party where such material breach is not cured during such notice period.

6.3 Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings (provided such proceedings are not dismissed within one hundred twenty (120) days of such institution), (ii) upon the other party's making an assignment for the benefit of creditors, or (iii) upon the other party's dissolution or ceasing to do business without a successor.

6.4 Customer’s rights to the Licensed Materials, and any licenses granted hereunder, shall terminate upon any termination of this Agreement. In the event that Customer terminates this Agreement pursuant to the second sentence of Section 6.2 above, ten9 will refund to Customer a pro-rated portion of pre-paid Fees for Services not actually received by Customer as of the date of such termination. The following Sections will survive any termination of this Agreement: 2 through 6 (except for Section 4.3), and 8 through 11.

7. WARRANTY; CUSTOMER SOFTWARE SECURITY

ten9 represents and warrants that (i) it has all rights and licenses necessary for it to perform its obligations hereunder, and (ii) it will not knowingly include, in any ten9 software released to the public and provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that are intentionally designed to disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data. If, at any time, ten9 fails to comply with the warranty in this Section, Customer may promptly notify ten9 in writing of any such noncompliance. ten9 will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, Customer may terminate this Agreement as its sole and exclusive remedy for such noncompliance.

8. WARRANTY DISCLAIMER

EXCEPT AS EXPRESSLY STATED HEREIN, THE LICENSED MATERIALS, SOFTWARE AND ten9 PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND. ten9 AND ITS LICENSORS HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

9. LIMITATION OF LIABILITY

EXCEPT WITH RESPECT TO BREACH(ES) OF SECTION 1.1 AND/OR 2.1, IN NO EVENT WILL EITHER PARTY OR THEIR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE LICENSED MATERIALS OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, ANY DELAY OR INABILITY TO USE THE LICENSED MATERIALS OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. EXCEPT WITH RESPECT TO BREACH(ES) OF SECTION 1.1 AND/OR 2.1, THE TOTAL LIABILITY OF EACH PARTY AND ITS LICENSORS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE GREATER OF (i) ONE THOUSAND DOLLARS ($1,000), OR (ii) THE FEES PAID TO ten9 HEREUNDER IN ONE YEAR PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

10. U.S. GOVERNMENT MATTERS

Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Licensed Materials or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Licensed Materials is representation and warranty that the User is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by ten9 are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

11. MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by either party without the other party’s prior written consent, not to be unreasonably withheld or delayed; provided that either party may transfer and/or assign this Agreement to a successor in the event of a sale of all or substantially all of its business or assets to which this Agreement relates. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed or otherwise agreed to by each party, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. ten9 will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in San Francisco County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement.

12. DATA PRIVACY

Customer shall ensure that any and all information or data, including without limitation, personal data, used by Customer in connection with the Agreement (“Customer Data”) is collected, processed, transferred and used in full compliance with Applicable Data Protection Laws (as defined below) and that it has all obtained all necessary authorizations and consents from any data subjects to process Customer Data. Customer shall adopt and maintain appropriate organizational, technical and security measures prior to any such collection, processing or transfer in order to protect against unauthorized access to or use of Customer Data. Customer shall immediately inform ten9 upon becoming aware of any breach within the meaning of Applicable Data Protection Law relating to Customer Data (a “Security Incident”) and to cooperate with ten9 in any investigation thereof and in the implementation of any measures reasonably required to be taken in response thereto. If required by Applicable Data Protection Laws, the parties will enter into standard contractual clauses under GDPR (as defined below) for the transfer of any Customer Data outside of the European Union. For purposes hereof: (a) “Applicable Data Protection Laws” means any applicable laws, statutes or regulations as may be amended, extended or re-enacted from time to time which relate to personal data including without limitation (i) prior to 25 May 2018, the EU Data Protection Directive 95/46/EC as transposed into EU Member State law; (ii) from and after 25 May 2018, GDPR and any EU Member State laws implementing the GDPR; and (iii) the e-Privacy Directive 2002/58/EC, as amended and as transposed into EU Member State law and any legislation replacing the e-Privacy Directive and (b) “GDPR” means the Regulation (EU) 2016/679 of the European Parliament and of the Counsel of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).

ten9 Professional Services Terms

1. Services

1.1 Statements of Work. ten9 will provide Customer with software-related professional services (“Services”) as set forth in, one or more, mutually agreed to and signed, statement of work, which shall contain without limitation, a description of the Services, the Services rate(s) and payment terms (each an “SOW”). The parties agree that SOWs may not be complete statements of Services required by Customer and additional Services may be required which would be difficult to determine as of the date of this Service Agreement or of the applicable SOW. At Customer’s request, the SOW may include an estimate of charges for the Services, but such estimate shall not be binding on ten9 or convert the SOW into a fixed price contract with respect to such Services. ten9 is under no obligation to perform any Services other than pursuant to an SOW. Notwithstanding the foregoing, if ten9 performs Services at the direction of Customer and the parties have not signed an SOW for such Services, then such Services shall be subject to all terms and conditions of this Service Agreement, and ten9’s then-current rates for such Services shall apply. ten9 may provide Services through its third-party contractors but, in all such cases, ten9 will remain subject to the obligations hereunder.

1.2 Conditions On Providing Services. Customer must assign a project manager who will assume responsibility for management of the project for which the Services are provided. Customer will establish the overall project direction, including assigning and managing the Customer’s project personnel team. Customer must provide ten9 with such facilities, equipment and support as are reasonably necessary for ten9 to provide Services, including remote access to the hardware and systems software configuration on which ten9 supports use of the computer software programs licensed by ten9 to Customer. ten9 owns and will own all right, title and interest to the Services and any work product generated from the Services (“Work Product”), and Customer will execute and deliver to ten9 any documents reasonably necessary to vest in ten9 all right, title and interest therein. Work Product does not include Customer’s pre-existing intellectual property or data. Subject to the terms and conditions of this Service Agreement and the applicable license agreement governing Customer’s use of ten9’s software, and expressly conditioned on Customer’s compliance with the terms of such agreements, ten9 grants Customer a perpetual, non-exclusive, non-transferable license (without the right to sublease or sublicense) to use and copy for use the Work Product for Customer’s own, internal computing operations.

1.3 Scheduling of Services. The parties will work together to determine a mutually agreed upon schedule based on the availability of ten9 resources and the agreed-upon project timeline. Services are non- cancellable. Accordingly, upon execution of an SOW, Customer will be liable for the entire amount quoted under the SOW.

2. Payment and Taxes

2.1 Payment. Unless otherwise stated in the applicable SOW, ten9 will invoice Customer for all Services and applicable charges, as ten9 renders the Services or charges are incurred, as applicable. Any unpaid fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees.

2.2 Taxes. Fees under this Service Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding US taxes based on ten9's net income) unless Customer has provided ten9 with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to ten9 on account thereof.

3. Confidentiality

3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Without limiting the foregoing, the Licensed Materials are ten9 Proprietary Information.

3.2 The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Service Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Service Agreement will prevent the Receiving Party from disclosing Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order.

3.3 Each party acknowledges and agrees that the other may suffer irreparable damage in the event of a breach of the terms of Section 3of this Service Agreement and that such party will be entitled to seek injunctive relief (without the necessity of posting a bond) in the event of any such breach.

3.4 Both parties will have the right to disclose the existence but not the terms and conditions of this Service Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers.

4. TERMINATION

4.1 This Service Agreement shall continue until terminated in accordance with this Section 4. Either party may terminate this Service Agreement upon 15 days’ written notice to the other party hereto in the event that Customer has no outstanding SOWs in effect.

4.2 Either party may terminate this Service Agreement immediately upon 15 days’ written notice to the other party in the event of any material breach of this Service Agreement (including without limitation, failure to pay any amounts when due hereunder) by such party where such material breach is not cured during such notice period.

4.3 Either party may terminate this Service Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings (provided such proceedings are not dismissed within one hundred twenty (120) days of such institution), (ii) upon the other party's making an assignment for the benefit of creditors, or (iii) upon the other party's dissolution or ceasing to do business without a successor.

4.4 The following Sections will survive any termination of this Service Agreement: 2 through 4 and 6 through 8.

5. WARRANTY

ten9 represents and warrants that (i) during the term of the applicable SOW and continuing for ninety (90) days after the completion of Services pursuant to that SOW, ten9 will render all Services under such SOW with reasonable care and skill. If, at any time, ten9 fails to comply with the warranty in this Section, Customer may promptly notify ten9 in writing of any such noncompliance. ten9 will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, Customer may terminate this Service Agreement as its sole and exclusive remedy for such noncompliance.

6. WARRANTY DISCLAIMER

THE SERVICES AND ANYTHING PROVIDED IN CONNECTION WITH THIS SERVICE AGREEMENT ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND. ten9 AND ITS LICENSORS HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

7. LIMITATION OF LIABILITY

IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS SERVICE AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF EACH PARTY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE GREATER OF (i) ONE THOUSAND DOLLARS ($1,000), OR (ii) THE FEES PAID OR PAYABLE TO ten9 HEREUNDER IN ONE YEAR PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

8. MISCELLANEOUS

If any provision of this Service Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Service Agreement will otherwise remain in full force and effect and enforceable. This Service Agreement is not assignable, transferable or sublicensable by either party without the other party’s prior written consent, not to be unreasonably withheld or delayed; provided that either party may transfer and/or assign this Service Agreement to a successor in the event of a sale of all or substantially all of its business or assets to which this Service Agreement relates. Both parties agree that this Service Agreement, including each SOW which incorporates these terms, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Service Agreement, and that all waivers and modifications must be in a writing signed or otherwise agreed to by each party, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Service Agreement and neither party has any authority of any kind to bind the other in any respect whatsoever. In any action or proceeding to enforce rights under this Service Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Service Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. ten9 will not be liable for any loss resulting from a cause over which it does not have direct control. This Service Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in San Francisco County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Service Agreement.

9. DATA PRIVACY

Customer shall ensure that any and all information or data, including without limitation, personal data, used by Customer in connection with the Agreement (“Customer Data”) is collected, processed, transferred and used in full compliance with Applicable Data Protection Laws (as defined below) and that it has all obtained all necessary authorizations and consents from any data subjects to process Customer Data. Customer shall adopt and maintain appropriate organizational, technical and security measures prior to any such collection, processing or transfer in order to protect against unauthorized access to or use of Customer Data. Customer shall immediately inform ten9 upon becoming aware of any breach within the meaning of Applicable Data Protection Law relating to Customer Data (a “Security Incident”) and to cooperate with ten9 in any investigation thereof and in the implementation of any measures reasonably required to be taken in response thereto. If required by Applicable Data Protection Laws, the parties will enter into standard contractual clauses under GDPR (as defined below) for the transfer of any Customer Data outside of the European Union. For purposes hereof: (a) “Applicable Data Protection Laws” means any applicable laws, statutes or regulations as may be amended, extended or re-enacted from time to time which relate to personal data including without limitation (i) prior to 25 May 2018, the EU Data Protection Directive 95/46/EC as transposed into EU Member State law; (ii) from and after 25 May 2018, GDPR and any EU Member State laws implementing the GDPR; and (iii) the e-Privacy Directive 2002/58/EC, as amended and as transposed into EU Member State law and any legislation replacing the e-Privacy Directive and (b) “GDPR” means the Regulation (EU) 2016/679 of the European Parliament and of the Counsel of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).

Education and OSS Terms

BY CHECKING THE “I ACCEPT" BOX IN THE LICENSE FLOW, YOU AND ANY ENTITY THAT YOU REPRESENT (“CUSTOMER”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS ten9 END USER LICENSE AGREEMENT (EDUCATION AND OSS) (“AGREEMENT”) AS OF THE DATE OF CUSTOMER'S FIRST DOWNLOAD OF THE LICENSED MATERIALS (THE "EFFECTIVE DATE"). CUSTOMER’S CONTINUED USE OF THE SOFTWARE OR ANY LICENSED MATERIALS PROVIDED BY ten9 INC. (“ten9”) SHALL ALSO CONSTITUTE ASSENT TO THE TERMS OF THIS AGREEMENT. IF CUSTOMER DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE "CANCEL" BUTTON AND THE DOWNLOAD AND INSTALLATION PROCESS WILL NOT CONTINUE. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS. IF YOU ARE EXECUTING THIS AGREEMENT ON BEHALF OF AN ORGANIZATION, YOU REPRESENT THAT YOU HAVE AUTHORITY TO DO SO.

1. LICENSE

1.1 Subject to the terms and conditions of this Agreement, ten9 hereby grants to Customer and its Affiliates (as defined below) a limited, non-exclusive, non-transferable, non-sublicenseable license, for the Software (as defined below), as well as the documentation, training materials or other materials supplied by ten9 (the “Other ten9 Materials”) for: (A) Customer’s Students and Faculty (each separately defined below) to use the object code of the Software selected by Customer, solely for internal use directly related to learning, teaching, and/or training Students. Educational purposes do not include commercial, professional, or any other for-profit purposes (“Education License”). For the avoidance of doubt, the Education License granted herein shall also include access and/or use by IT professionals employed or contracted by Customer, solely for the purposes of providing administrative support to the Students and/or Faculty, in furtherance of their use of the Licensed Materials pursuant to the terms of this Agreement; or (B) Customer’s open source project contributors to use the object code of the Software selected by Customer, solely for its internal use in connection with the development of software for which the original source code is made freely available under an OSI-approved open source license, and which does not seek to make profit from the resulting project software (“OSS License”).

1.2 The software selected by Customer (“Software”) and Other ten9 Materials are collectively referred to herein as the “Licensed Materials.” “Students” shall mean individuals enrolled at least part-time at an educational institution. “Faculty” shall mean those individuals teaching the Students. No use shall be made of the Education License or OSS License for any purpose other than as set forth herein. “Affiliate” means any entity(ies) controlling, controlled by, and/or under common control with a party hereto, where “control” means the ownership of more than 50% of the voting securities in such entity. “User” means each individual end-user (person or machine) of Customer and/or its Affiliates (including, without limitation, employees, agents, and consultants thereof) with access to the Licensed Materials hereunder.

2. RESTRICTIONS AND RESPONSIBILITIES

2.1 Except as expressly authorized in Section 1.1, Customer will not, and will not permit any third party to: use the Licensed Materials for any purpose other than as specifically authorized in Section 1, or in such a manner that would enable any unlicensed person to access the Licensed Materials; use the Licensed Materials or any other ten9 software for timesharing or service bureau purposes or for any purpose other than its and its Affiliates’ own internal use (including without limitation, sublicensing, distributing, selling, reselling any of the foregoing); except as expressly permitted herein; use the Licensed Materials in connection with any high risk or strict liability activity (including, without limitation, space travel, firefighting, police operations, power plant operation, military operations, rescue operations, hospital and medical operations or the like); use the Licensed Materials or software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any privacy laws, and laws and regulations concerning intellectual property, consumer and child protection, obscenity or defamation); or use the Licensed Materials in any manner that (1) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, or libelous (including without limitation, accessing any computer, computer system, network, software, or data without authorization, breaching the security of another user or system, and/or attempting to circumvent any User authentication or security process), (2) impersonates any person or entity, including without limitation any employee or representative of ten9, or (3) contains a virus, trojan horse, worm, time bomb, unsolicited bulk, commercial, or “spam” message, or other harmful computer code, file, or program (including without limitation, password guessing programs, decoders, password gatherers, keystroke loggers, cracking tools, packet sniffers, and/or encryption circumvention programs).

2.2 Customer will cooperate with ten9 in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as ten9 may reasonably request. Customer will also cooperate with ten9 in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Licensed Materials.

2.3 Customer will be responsible for maintaining the security of Customer’s account, passwords (including but not limited to administrative and User passwords) and files, and for all uses of Customer account with or without Customer’s knowledge or consent.

3. CONFIDENTIALITY

3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Without limiting the foregoing, the Licensed Materials are ten9 Proprietary Information.

3.2 The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, ten9 may collect data with respect to and report on the aggregate response rate and other aggregate measures of the Licensed Materials’ performance and Customer’s usage of the Licensed Materials; provided that ten9 will not identify Customer as the source of any such data without Customer’s prior written consent. For the avoidance of doubt, use of a third party to host the data collected shall not be deemed a disclosure.

3.3 Each party acknowledges and agrees that the other may suffer irreparable damage in the event of a breach of the terms of Sections 1.1, 2.1 or 3.2 of this Agreement and that such party will be entitled to seek injunctive relief (without the necessity of posting a bond) in the event of any such breach.

3.4 Both parties will have the right to disclose the existence of the relationship between the parties, but not the terms and conditions of this Agreement, unless such disclosure of the Agreement terms is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers.

4. INTELLECTUAL PROPERTY RIGHTS

4.1 Except as expressly set forth herein, ten9 alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Licensed Materials and any suggestions, ideas, enhancement requests, feedback, code, or other recommendations provided by Customer, its Affiliates or any third party relating to the Licensed Materials, which are hereby assigned to ten9. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Licensed Materials, or any intellectual property rights.

4.2 Customer shall not remove, alter or obscure any of ten9’s (or its licensors’) copyright notices, proprietary legends, trademark or service mark attributions, patent markings or other indicia of ten9’s (or its licensors’) ownership or contribution from the Licensed Materials. Additionally, Customer agrees to reproduce and include ten9’s (and its licensors’) proprietary and copyright notices on any copies of the Licensed Materials, or on any portion thereof, including reproduction of the copyright notice. Notwithstanding anything to the contrary herein, certain components of the Licensed Materials, including without limitation, any component of the Licensed Materials distributed by ten9 as part of the ten9 Community Edition (as described at /features/#community), are licensed by third parties pursuant to the terms of certain third party licenses described in such source code annotations.

4.3 Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all software, information, content and data provided by or on behalf of Customer or made available or otherwise distributed through use of the Licensed Materials (“Content”) and the intellectual property rights with respect to that Content. If ten9 receives any notice or claim that any Content, or Customer’s activities hereunder (including without limitation, with respect to any Content), infringes or violates the rights of a third party or any applicable law or regulation (a “Claim”), Customer will indemnify, defend and hold ten9 harmless from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Claim, as incurred. The immediately foregoing indemnity obligations are expressly conditioned on ten9 providing Customer with prompt notice of, and reasonable cooperation and sole control over the defense and/or settlement of the applicable Claim. Subject to the foregoing, ten9 may participate in the defense and/or settlement of any applicable Claim with counsel of its choosing at its own expense.

5. TERMINATION

5.1 This Agreement shall continue until terminated in accordance with this Section 5. Either party may terminate this Agreement upon 30 days’ written notice to the other party hereto in the event that Customer has no then-current subscription and license key with respect to the Licensed Materials.

5.2 Customer may terminate this Agreement at any time upon written notice to ten9. Either party may terminate this Agreement immediately upon 30 days’ written notice to the other party in the event of any material breach of this Agreement (including without limitation, any breach of Section 2.1) by such party where such material breach is not cured during such notice period.

5.3 Customer’s rights to the Licensed Materials, and any licenses granted hereunder, shall terminate upon any termination of this Agreement. The following Sections will survive any termination of this Agreement: 3 through 10.

6. WARRANTY DISCLAIMER

THE LICENSED MATERIALS, SOFTWARE AND ten9 PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND. ten9 AND ITS LICENSORS HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

7. LIMITATION OF LIABILITY

EXCEPT WITH RESPECT TO BREACH(ES) OF SECTION 1.1 AND/OR 2.1, IN NO EVENT WILL EITHER PARTY OR THEIR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE LICENSED MATERIALS OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, ANY DELAY OR INABILITY TO USE THE LICENSED MATERIALS OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. EXCEPT WITH RESPECT TO BREACH(ES) OF SECTION 1.1 AND/OR 2.1, THE TOTAL LIABILITY OF ten9 AND ITS LICENSORS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE ONE THOUSAND DOLLARS ($1,000). THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

8. U.S. GOVERNMENT MATTERS

Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Licensed Materials or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Licensed Materials is representation and warranty that the User is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by ten9 are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

9. MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by either party without the other party’s prior written consent, not to be unreasonably withheld or delayed; provided that either party may transfer and/or assign this Agreement to a successor in the event of a sale of all or substantially all of its business or assets to which this Agreement relates. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed or otherwise agreed to by each party, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect whatsoever. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. ten9 will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in San Francisco County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement.

10. DATA PRIVACY

Customer shall ensure that any and all information or data, including without limitation, personal data, used by Customer in connection with the Agreement (“Customer Data”) is collected, processed, transferred and used in full compliance with Applicable Data Protection Laws (as defined below) and that it has all obtained all necessary authorizations and consents from any data subjects to process Customer Data. Customer shall adopt and maintain appropriate organizational, technical and security measures prior to any such collection, processing or transfer in order to protect against unauthorized access to or use of Customer Data. Customer shall immediately inform ten9 upon becoming aware of any breach within the meaning of Applicable Data Protection Law relating to Customer Data (a “Security Incident”) and to cooperate with ten9 in any investigation thereof and in the implementation of any measures reasonably required to be taken in response thereto. If required by Applicable Data Protection Laws, the parties will enter into standard contractual clauses under GDPR (as defined below) for the transfer of any Customer Data outside of the European Union. For purposes hereof: (a) “Applicable Data Protection Laws” means any applicable laws, statutes or regulations as may be amended, extended or re-enacted from time to time which relate to personal data including without limitation (i) prior to 25 May 2018, the EU Data Protection Directive 95/46/EC as transposed into EU Member State law; (ii) from and after 25 May 2018, GDPR and any EU Member State laws implementing the GDPR; and (iii) the e-Privacy Directive 2002/58/EC, as amended and as transposed into EU Member State law and any legislation replacing the e-Privacy Directive and (b) “GDPR” means the Regulation (EU) 2016/679 of the European Parliament and of the Counsel of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).

Fulfillment Reseller Agreement

This Fulfillment Reseller Agreement is entered into on the earlier of; (i) the parties execution of an Order Form (as defined below), or (ii) Resellers use or resale of any ten9 Products (the “Effective Date”) between:

ten9 Inc. with a registered address at #350, San Francisco, CA 94104, USA, or an Affiliate of ten9 as referenced in an Order Form (referred to herein as "Vendor" or “ten9”); and

The Reseller identified in an executed Order Form, or, otherwise resells the ten9 Products (the "Reseller")

Background:

(A) Vendor sells the Products (as defined below) and wishes to arrange for distribution of the Products in the Territory (as defined below).

(B) Vendor has agreed to appoint the Reseller as its non-exclusive Reseller to distribute the Products and associated documentation in the Territory on and subject to the terms and conditions set out in this Agreement.

It is agreed as follows:

1. Definitions and interpretation

1.1 In this Agreement, unless the context otherwise requires, the following words shall have the following meanings:

"Agreement" means this agreement (including any Order Form, schedule or annexure to it);

"Business Day" means a day (other than a Saturday or a Sunday) on which clearing banks are open for business in the State of California, USA;

"Confidential Information" means any information disclosed by a party under this Agreement which is marked as confidential or which is reasonably apparent as confidential in nature including all commercial or technical information relating to the disclosing party's business;

"Control" means direct or indirect ownership of: (i) 50% or more of the voting securities or voting interest in such corporation or other entity; (ii) 50% or more of the interest in the profit or income in the case of a business entity other than a corporation; or (iii) in the case of a partnership, any other comparable interest in the general partner;

"Effective Date" means the date of this Agreement;

"Event of Force Majeure" means an event beyond the reasonable control of a party including but not limited to a strike, lock out or other form of industrial action (except in relation to a party's own workforce), outbreak of hostilities, riot, civil disturbance or acts of terrorism, fire, explosion or flood, or theft and malicious damage. No event shall be treated as an Event of Force Majeure if it is attributable to a wilful act or omission or any failure to take reasonable precautions by a party or any failure to take reasonable steps to overcome the event;

"Financial Year" means the period from 1 January to 31 December in each Year;

"Initial Term" means the period of twelve (12) months after the Effective Date;

"Intellectual Property Rights" means copyright and related rights, trademarks and service marks, trade names and domain names, patents, rights to inventions, rights in get-up, rights to goodwill and to sue for passing off and unfair competition, rights in designs, rights in computer software, the "look and feel" of any websites, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (and rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world;

"End User" means the Reseller's end customer who, (i) has acquired ten9 Products for their own personal or internal use and without the right to resell, remarket or otherwise distribute ten9 Products, and (ii) is situated in the Territory;

“Order Form” means the transactional agreement executed between ten9 and Reseller for the sales of Product(s) to an End User.

"Products" means the Software and/or Software Documentation;

"EULA" means the end user subscription licence agreement(s) applicable to the relevant Product(s) sold to the Licensee, the forms of which are set out in the Subscription Agreement (defined within this Agreement);

"Software" means the software supplied by Vendor to the Reseller pursuant to this Agreement and all modifications, enhancements and replacements of the Software and additions to the Software provided by Vendor and made available to the Reseller from time to time pursuant to this Agreement including the software applications listed in an applicable Order Form (Products);

"Software Documentation" means the operating manuals and other literature provided or made available by Vendor to the Reseller from time to time for use by Licensees in conjunction with the Software;

"Support Services" means the software support and maintenance services provided by Vendor to Licensees as set out in the applicable EULA;

"Territory" is defined in Exhibit 1(Territory), if left blank, then the Territory shall default to any country in which ten9 is legally allowed to provide Products;

"End User Staff" means a member of staff of an End User or potential End User of a Product who is authorised, or in the event that such Product(s) were to be licensed to that End User or potential End User Vendor would expect to be authorised, to use the Product(s);

"Year" means a period of twelve (12) months from the Effective Date or an anniversary of such date.

In this Agreement, unless the context otherwise requires:

(a) the words "includes" or "including" shall be construed as illustrative only and shall not limit the generality of the preceding words;

(b) if there is any conflict or inconsistency between any clause of this Agreement and any schedule to this Agreement, the clause shall prevail; and

(c) the headings are inserted for convenience only and shall not affect the interpretation of this Agreement.

2. Appointment

2.1 Vendor appoints the Reseller and the Reseller agrees to act as the non-exclusive Reseller of Vendor for the distribution, sale and marketing of the Products in the Territory, subject to the terms and conditions of this Agreement.

2.2 The Reseller warrants to Vendor that it has the ability and experience to carry out the obligations assumed by it under this Agreement and that by virtue of entering into this Agreement it is not and will not be in breach of any express or implied obligation to any third party binding upon it.

2.3 The Reseller shall not represent itself as an agent of Vendor for any purpose, nor pledge Vendor’s credit or give any condition or warranty or make any representation on Vendor’s behalf of or commit Vendor to any contracts. Further, the Reseller shall not without Vendor’s prior written consent make any representations, warranties, guarantees or other commitments with respect to the specifications, features or capabilities of the Products other than, or which are inconsistent with, those contained in the documentation supplied by Vendor (including, without limitation, the EULA) or otherwise incur any liability on behalf of Vendor in any circumstances.

2.4 On giving three (3) months' notice in writing to the Reseller, Vendor may vary Product offering availability as it thinks fit to exclude one or more of the Products from this Agreement if the production or sale of such Products is permanently discontinued for any reason.

2.5 Vendor may make changes to the Products and specifications thereof, provided the changes do not materially adversely affect the overall quality of the Products. Vendor shall give notice of any changes to Product specifications to the Reseller as soon as reasonably practicable.

3. Duration

3.1 This Agreement shall commence on the Effective Date and (unless terminated at an earlier date in accordance with clause 13 (Termination)) shall continue in force for the Initial Term and after that continue unless and until either party gives the other party not less than thirty (30) days’ notice in writing to expire at any time on or after the expiry of the Initial Term.

4. Supply of Products

4.1 The Reseller shall in respect of each order for the Products to be supplied under this Agreement be responsible for:

(a) submitting orders for Products in writing, electronically, or by other agreed means;

(b) ensuring the accuracy of the order; and

(c) providing Vendor with any information which is necessary to enable Vendor to fulfil the order.

4.2 The Reseller shall require each End User to sign or otherwise assent (in a manner acceptable to ten9) to the agreement set forth at https://about.ten9.com/terms/#subscription, as updated by ten9 from time to time (“Subscription Agreement”), as a condition to the distribution of ten9 Product(s) to such End User. Partner shall not amend or grant any waiver under the Subscription Agreement.

4.3 If Reseller becomes aware of any violation of the Subscription Agreement, Reseller will notify ten9 immediately and will reasonably assist ten9 in its efforts to enforce the terms of the Subscription Agreement.

4.4 When ten9 and Reseller have executed an Order Form referencing this Agreement, or ten9 has accepted the Reseller’s Purchase Order, subject to an Order Form and this Agreement, ten9 will issue the applicable software license key to the End User.

4.5 If applicable, Reseller shall supply prospected deals through the deal register process stated in the ten9 Reseller Handbook located at https://about.ten9.com/handbook/resellers/#deal-registration (“Deal Registration”). Deal Registration approval or rejection shall be at ten9’s sole discretion.

5. Product distribution

5.1 End Users may download the Software from the software download link sent electronically to them, or from ten9’s web-site, and access it following receipt of a licence key in accordance with clause 4.

5.2 Subject to Vendor’s prior written approval in each case, Vendor grants the Reseller a non-exclusive, non-transferable licence (without the right to sub-licence) to demonstrate the Software to prospective customers subject to the terms and conditions of, (i) this Agreement, (ii) the Subscription Agreement terms stated in Section 4.2 above, and/or (iii) any other terms and conditions (including time limitations) provided by ten9 from time to time. The Reseller shall not otherwise provide access to the Software or the Software Documentation to any third party.

5.3 The Reseller shall not:

(a) reverse engineer, decompile or otherwise endeavour to obtain the source code to the any Software in object code form.

(b) copy the Software save as expressly permitted under this Agreement.

6. Duties and obligations of the Reseller

6.1 The Reseller shall:

(a) use its best endeavours to promote the distribution and sale of the Products throughout the Territory;

(b) promptly inform Vendor of any facts or opinions of which the Reseller becomes aware which are likely to be relevant in relation to the commercial exploitation of the Products and which are advantageous or disadvantageous to the interests of Vendor;

(c) at all times conduct its business in a manner that will reflect favourably on the Products and on the good name and reputation of Vendor;

(d) not by itself or with others participate in any illegal, deceptive, misleading or unethical practices including, but not limited to, disparagement of the Products or Vendor or other practices which may be detrimental to the Products, Vendor or the public interest;

(e)not make any misrepresentations in relation to the Products;

(f) not during the continuance of this Agreement actively market the Products outside the Territory without the prior written consent of Vendor provided otherwise that nothing else in this Agreement shall prevent the Reseller from responding to unsolicited requests for the Products from outside the Territory;

(g)supply to Vendor such reports, returns and other information relating to orders and projected orders for the Products as Vendor may from time to time reasonably require;

(h) not make any promises or representations or give any warranties or guarantees in respect of the Products except such as are contained in a EULA or as expressly authorised by Vendor in writing and shall not supply the Products to any prospect knowing that it does not meet that prospect's specified requirements;

(i) use Vendor's trademarks and trade names relating to the Products only in the registered or agreed style in connection with the distribution of the Products and shall not use such trademarks or trade names in connection with any other products or services or as part of the corporate or any trade name of the Reseller;

(j) not alter, obscure, remove, interfere with or add to any of the trademarks, trade names, markings or notices affixed to or contained in the Products;

(k) permit Vendor and its authorised agents at all reasonable times with seven (7) Business Days’ notice to enter any of the Reseller's premises for the purpose of ascertaining that the Reseller is complying with its obligations under this Agreement (and the Reseller irrevocably licenses Vendor, its employees and agents to enter any such premises for such purpose); and

(l) be responsible for advertising and promoting the Products in the Territory (but the Reseller shall not use any advertising materials or promotional literature without Vendor's prior written consent).

(m) Comply with all of the terms and conditions of the ten9 Reseller Program and Reseller Handbook, which can be found at (https://about.ten9.com/resellers/program) and (https://about.ten9.com/handbook/resellers), respectively, both of which may be subject to change from time to time. To the extent there are any conflicts between the terms of the ten9 Reseller Program or Reseller Handbook, and this Agreement, the terms of this Agreement shall take precedence.

(n) Comply with the ten9 Partner Code of Ethics as found at https://about.ten9.com/handbook/people-group/code-of-conduct/

7. Duties and obligations of Vendor

7.1 ten9 shall:

(a) provide the Reseller with such marketing and technical assistance as Vendor may in its discretion consider necessary to assist the Reseller with the promotion of the Products;

(b) endeavour to answer as soon as possible all technical queries raised by the Reseller concerning the use or application of the Products;

(c) provide the Reseller with a reasonable number of copies of any promotional literature relating to the Products which Vendor may produce from time to time;

(d) provide the Support Services; and

(e) provide the Reseller promptly with all information and assistance necessary to enable the Reseller properly to perform its obligations under this Agreement in respect of any modified, enhanced or replacement version of or addition to the Software.

8. Prices and payment

8.1 Subject to Exhibit 2 (Product) attached to this Agreement, Reseller will pay Vendor for each order of the Products as set out in an applicable Order Form executed, or otherwise agreed to between ten9 and Reseller. Upon the execution of the Order Form between ten9 and Reseller, all fees outlined in the Order Form shall be considered due and payable, subject to this Agreement. The terms of this Agreement and an applicable Order Form shall govern the relationship between Vendor and Reseller with respect to all matters related herein. For the avoidance of doubt, no terms on a Reseller PO shall govern or otherwise apply to any matters relating to this Agreement or an Order Form, and all such PO terms are expreselly rejected.

8.2 The Reseller shall be responsible for obtaining any necessary import licences, certificates of origin or other requisite documents and paying all applicable customs, duties and taxes (both present and future) in respect of the importation of the Products into the Territory and their resale in the Territory.

8.3 All payments under this Agreement shall be paid free and clear of all deductions or withholdings whatsoever, save to the extent any such deductions or withholdings are required by law.

8.4 Unless otherwise stipulated in a Tax Treaty, if any party is required by law to make any deduction or withholding in respect of tax from any amounts payable to the other party under this Agreement, the paying party shall:

(a) pay to the other party an additional amount as will, after the deduction or withholding has been made, leave the receiving party with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding;

(b) promptly pay to the relevant taxation authority within the period permitted by law the amount of such withholding or deduction; and

(c) provide the receiving party with written evidence that it has made the payment to the relevant tax authority.

8.5 Unless otherwise stipulated a Tax Treaty, where under this Agreement any party agrees to pay to any other party any sum or to furnish to any other party consideration which (in either case) is consideration for a taxable supply that sum or consideration shall be exclusive of all value added tax, sales or similar taxes ("Tax") payable on it and the recipient of the supply shall pay an amount equal to such Tax in addition to any sum or consideration on receipt of a valid Tax invoice from the relevant party.

8.6 The Reseller shall pay the fees of the Products stated in the executed Order Form or agreed to otherwise, and as referenced in ten9’s invoice(s) to Reseller, within Forty Five (45) days from the date of such invoice. For the avoidance of doubt, Reseller is obligated for all fees agreed to between the parties, regardless of any default or non payment by an End User.

8.7The Reseller shall not be entitled to make any deductions or deferments to the sums due to Vendor under this Agreement in respect of any disputes or claims whatsoever with or against Vendor.

8.8 If the Reseller fails to make any payment to Vendor under this Agreement on the due date then, without prejudice to any other right or remedy available to Vendor, Vendor shall be entitled to:

(a)suspend the performance or further performance of its obligations under this Agreement without liability to the Reseller; and

(b) charge the Reseller interest on the outstanding amount at the rate of the lesser of (a) 4% per annum above the overnight LIBOR rate calculated daily from the date the payment became due until actual payment is made, or (b) the highest amount permitted by applicable law.

8.9 Notwithstanding the fact that Vendor will publish its price list from time to time the Reseller shall determine, at its sole discretion, the price at which it sells the Products to its customers, and any discounts the Reseller offers to its customers will not vary the amount payable to Vendor for the Products under this clause 8.

9. Audit rights

9.1 The Reseller shall keep proper, accurate and up to date records and data relating to the performance of its obligations under the Agreement and all payments made and received by the Reseller in connection with this Agreement. The Reseller shall retain such records from the Effective Date until at least six (6) years after the expiry or termination of the Agreement.

9.2 The Reseller shall permit Vendor and its third party representatives (provided such representatives are subject to written confidentiality obligations in respect of any information obtained), on reasonable notice during normal business hours, to access and take copies of the Reseller’s records, books of account and any other information held by or on behalf of the Reseller that are solely related to Reseller’s obligations under this Agreement and to meet with the Reseller’s personnel in order to audit the Reseller’s compliance with its obligations under this Agreement. Such audit rights shall continue for six (6) years after termination or expiry of this Agreement. The Reseller shall give all necessary assistance to the conduct of any such audits.

9.3 If upon examination of the records, Vendor reasonably determines that any monies are due from the Reseller to Vendor pursuant to this Agreement, the Reseller shall promptly pay such sums to Vendor together within any accrued interest thereon, and reimburse Vendor for all reasonable costs incurred in connection with such audit.

10. Proprietary rights

10.1 The Products and all Intellectual Property Rights in them or relating to them are and shall remain the property of Vendor (and/or its third party licensors) and nothing in this Agreement shall transfer or grant any rights in relation to the Products other than the limited licences expressly set out in this Agreement.

10.2 The Reseller shall notify Vendor immediately if the Reseller becomes aware of any unauthorised use of any of the Products or any of the Intellectual Property Rights in them or relating to them and will assist Vendor (at Vendor's expense) in taking all steps to defend Vendor's rights in them.

10.3 The Reseller shall not use, reproduce or deal in the Products or any copies of them except as expressly permitted by this Agreement.

10.4 Subject always to clause 6(l), the Reseller may procure the translation of the Software Documentation and any other technical and promotional literature and publicity material into local languages spoken in the Territory ("Translation Works") at its own expense, provided that the Reseller agrees to grant and hereby does grant Vendor an exclusive, unrestricted, worldwide, perpetual, irrevocable, royalty-free licence to use, copy and/or modify the Translation Works as Vendor deems necessary in Vendor's sole discretion. The Reseller shall use a reputable and appropriately qualified professional translator, and the Reseller warrants that the Translation Works accurately translate the Software Documentation and relevant materials to a high professional standard.

10.5 Vendor shall defend, indemnify and hold the Reseller harmless against any unaffiliated third party claim that the Products (excluding any Translation Works procured by the Reseller) infringe the Intellectual Property Rights of any third party; provided that Reseller gives Vendor prompt written notice of all applicable claims, immediate and sole control over the defence and/or settlement of such claims, and all reasonable assistance with such claims. The foregoing obligations do not apply with respect to portions or components of the Products (i) not created by Vendor, (ii) resulting in whole or in part in accordance from Reseller or Licensee specifications, (iii) that are modified after delivery by Vendor, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Reseller continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Reseller’s use of the Products is not strictly in accordance with this Agreement and all related documentation. Vendor shall have the right to replace or change all or any part of the Products in order to avoid any infringement. The foregoing states the entire liability of the Vendor to the Reseller, and Reseller’s sole and exclusive remedy, in respect of the infringement by the Products of the Intellectual Property Rights of any third party.

11. Confidentiality

11.1 During the term of this Agreement and for a period of five (5) years after termination or expiry of this Agreement, each party shall:

(a) treat as strictly confidential all Confidential Information received from the other party; and

(b) only use the Confidential Information received from the other party for the purpose of fulfilling its obligations and exercising its rights under this Agreement.

11.2 Clause 11.1 shall not apply to the disclosure or use of Confidential Information:

(a) with the prior written consent of the disclosing party;

(b) to the extent required by law, a court order or by the rules of any relevant Stock Exchange or by any relevant regulatory or government authority; or

(c) to the extent that information has come into the public domain through no fault of the receiving party.

11.3 Reseller further agrees that in the event Reseller at any point requires the ability to act, or needs to be identified, as a “sub-processor” as defined by the General Data Protection Regulation (“GDPR”), Reseller will execute a data protection addendum for this Agreement with ten9.

12. Compliance with Laws; Anti-bribery

12.1 The Reseller represents and warrants to Vendor that it (a) will comply with all applicable laws and regulations in its performance of its obligations and exercise of its rights under this Agreement, and (b) has not, and agrees that it shall not, in connection with any transactions contemplated by this Agreement, or in connection with any other business transactions involving Vendor, make any payment or transfer anything of value, directly or indirectly:

(a) to any governmental official or employee (including employees of a government corporation or public international organisation) or to any political party or candidate for public office; or

(b) to any other person or entity if such payments or transfers would violate the laws of the country in which made or the laws of the United States.

12.2 It is the intent of the parties that no payments or transfers of value shall be made which have the purpose or effect of public or commercial bribery, or acceptance of or acquiescence in, extortion, kickbacks, or other unlawful or improper means of obtaining business.

12.3 The Reseller represents that it is familiar with and understands the provisions of the U.S. Foreign Corrupt Practices Act ("FCPA") and agrees that it shall not violate, or cause Vendor to violate, FCPA in connection with the services provided to Vendor under this Agreement, and it shall provide certifications of compliance with FCPA upon written request by Vendor.

12.4 Breach of this clause 12 shall be deemed a material breach of this Agreement.

12.5 The Reseller shall defend, indemnify and hold Vendor, its affiliates, and each of their respective employees, officers and agents harmless against any losses, liabilities, damages, costs and expenses incurred by, or awarded against, Vendor as a result of any breach (or alleged breach) of this clause 12 by the Reseller.

13. Termination

13.1 Without prejudice to any other rights or remedies, either party may, by written notice to the other, terminate this Agreement, provided that such termination shall not relieve Reseller of payment of fees from an executed Order Form, if:

(a) the other party commits a material breach of this Agreement which is incapable of remedy; or

(b) the other party commits a material breach of this Agreement which is capable of remedy and fails to remedy such material breach within thirty (30) days after receiving written notice requiring it to remedy that material breach; or

(c) the other party suspends, or threatens to suspend payment of its debts or is deemed unable to pay its debts within the meaning of any applicable legislation; or

(d) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business without a successor; or

(e) a petition is presented on bona fide grounds (which is not dismissed within 120 days of institution), or a resolution is passed, or an order is made, for the winding up or provisional winding up of the other party, other than for the sole purpose of a solvent amalgamation or solvent reconstruction; or

(f) a receiver, administrative receiver, administrator or any similar officer is appointed in respect of the other party, or any step is taken towards the appointment of any such officer; or

(g) the other party commences negotiations in relation to, or enters into, any arrangement, compromise or composition with its creditors or any class of them (with or without first having sought or obtained a moratorium); or

(h) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.1(c)-(g) inclusive.

13.2 Vendor may terminate this Agreement (in whole or in part) upon written notice to the Reseller with effect from the date specified in such notice if the Reseller:

(a) undergoes a change of Control; or

(b) challenges or disputes the validly of any of Vendor's Intellectual Property Rights; or

(c) purports to assign any of its rights or obligations under this Agreement save as in accordance with clause 20 (Assignment and Subcontracting).

14. Consequences of termination

14.1 All rights and obligations of the parties shall cease to have effect immediately on termination of this Agreement except that termination shall not affect:

(a) the accrued rights and liabilities of the parties at the date of termination; and

(b) the right to claim damages for losses whenever they occur provided that they arise in connection with an event occurring on or before termination of this Agreement.

14.2 On termination or expiry of this Agreement for any reason:

(a) all licences granted by Vendor to the Reseller under this Agreement shall terminate other than in respect of any Software or Products already granted to Licensees;

(b) the Reseller shall at its own expense within thirty (30) days return to Vendor or otherwise dispose of in accordance with the directions of Vendor all documentation of any nature whatsoever relating to the Products in its possession or control (including the Software Documentation and any Translation Works);

(c) notwithstanding the provisions of clause 8, all outstanding unpaid invoices rendered by Vendor in respect of the Products shall become immediately payable by the Reseller and invoices in respect of Products ordered prior to termination but for which an invoice has not been submitted shall be payable immediately upon receipt of the invoice by the Reseller; and

(d) the following clauses of this Agreement will survive: 1, 5.3, 9, 10, 11, 12, 14, 16, and 18-30 (inclusive).

15. Force majeure

15.1 Neither party shall be deemed to be in breach of this Agreement, nor otherwise liable to the other, by reason of any delay in performance or non-performance of any of its obligations under this Agreement (except with respect to payment of monetary amounts) to the extent that such delay or non-performance is due to an Event of Force Majeure.

16. Liability

16.1 Nothing in this Agreement shall limit or exclude either party's liability for, death or personal injury caused by its negligence; fraud or wilful default by or on the part of a party; and anything else which cannot by law be limited or excluded.

16.2 Except as provided in clause 16.1, to the maximum extent permitted by applicable law, Vendor will not be liable to the Reseller in connection with this Agreement whether arising in tort (including negligence), contract or breach of statutory duty, or otherwise, and even if foreseeable for: loss of profits; loss of business; loss of contracts; loss of revenue; loss of goodwill; loss of production; loss of anticipated savings; and/or any indirect, incidental or consequential loss, damages and/or liability.

16.3 Except for the liabilities accepted under clause 16.1, to the maximum extent permitted by applicable law, Vendor's aggregate liability for all and any events arising in any Year of this Agreement shall be limited to:

(a) in respect of events arising in the first Year, the lessor of:

(i) an amount equal to the amount paid to Vendor under the Agreement prior to the event arising; and

(ii) the limits of Vendor's general liability insurance; and

(b) in respect of any events arising in the each subsequent Year of this Agreement, the lessor of:

(i) an amount equal to the amount paid or payable by the Reseller to Vendor under the Agreement in respect of the previous Year; and

(ii) the limits of Vendor's general liability insurance.

16.4 Except as expressly set forth in this agreement, the products and anything provided in connection with this agreement are provided "as-is," without any warranties of any kind. Except as expressly set forth in this agreement, vendor and its licensors hereby disclaim all warranties, express or implied, including, without limitation, all implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement.

17. Notices

17.1 Any notice to be given to a party under this Agreement shall be in writing (which excludes email) signed by or on behalf of the party giving it, and shall be delivered personally, sent by recorded delivery or commercial courier, to the address of the party set out on page 1 of this Agreement. Either party may, by a notice given in accordance with this clause, change its address for the purposes of this clause.

17.2 A notice shall be deemed to have been served:

(a) at the time of delivery if delivered personally; or

(b) two (2) Business Days after posting in the case of an address in the same country as the sender and five (5) Business Days after posting for any other address.

18. No partnership or agency

18.1 Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture between the parties, or to authorise either party to act as agent for the other and neither party shall have authority to act in the name of or on behalf of the other, or to enter into any commitment or make any representation or warranty or otherwise bind the other in any way.

19. Assignment and subcontracting

19.1 The Reseller may not assign, transfer, charge or otherwise encumber, declare a trust over or deal with in any other manner this Agreement or any right, benefit or interest under it, or subcontract any of its obligations under it, without the prior written consent of Vendor.

19.2 Vendor may at any time assign, transfer, charge or otherwise encumber, declare a trust over or deal with in any other manner this Agreement or any right, benefit or interest under it, or subcontract any of its obligations under it.

20. Cumulative remedies

20.1 Save as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

21. Exclusion of third party rights

21.1 Unless expressly provided in this Agreement, no term of this Agreement is enforceable by any person who is not a party to it.

22. Severance

22.1 If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision (or part) shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.

22.2 If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties' original commercial intention.

23. Variation

23.1 No purported variation of this Agreement shall be valid unless it is in writing (which excludes email) and signed by or on behalf of each party.

24. Waiver

24.1 No failure or delay by a party to enforce or exercise any right or remedy under this Agreement or by law shall be deemed to be a waiver of that or any other right or remedy, nor shall it operate so as to bar the enforcement or exercise of that or any other right or remedy at any time subsequently. Any waiver of any breach of this Agreement shall not be deemed to be a waiver of any subsequent breach.

25. Entire agreement

25.1 This Agreement constitutes the entire agreement and understanding of the parties with respect to the subject matter of this Agreement and supersedes any prior agreements, representations, understandings or arrangements between the parties (oral or written) in relation to such subject matter. Each party acknowledges that:

(a) upon entering into this Agreement, it does not rely, and has not relied, upon any representation (whether negligent or innocent), statement or warranty made or agreed to by any person (whether a party to this Agreement or not) except those expressly set out in this Agreement; and

(b) the only remedy available in respect of any misrepresentation or untrue statement made to it (whether made negligently or innocently) shall be a claim for breach of contract under this Agreement.

25.2 Nothing in this clause 25 shall limit or exclude any liability for fraud.

26. Further assurance

26.1 At its own expense, the Reseller shall, and shall procure that any necessary third party shall, promptly execute all such documents and do all such other acts as are necessary to give full effect to this Agreement.

27. Export Control

27.1 The Reseller acknowledges that the Products and all other related technical information, documents and materials may be subject to export controls under the U.S. Export Administration Regulations. To the extent applicable, the Reseller shall: (i) comply with all legal requirements under these controls; (ii) cooperate fully with Vendor in any official audit or inspection that relates to these controls; and (iii) not export, re-export, divert, transfer or disclose, directly or indirectly, any Product or related technical information, document or material or direct products thereof to any country outside of the Territory, unless it does so in compliance with applicable U.S. Commerce Department regulations and those of any relevant local governmental authority.

28. Counterparts

28.1 This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all the counterparts shall together constitute the same agreement.

29. Governing law and jurisdiction

29.1 This Agreement and any dispute or claim (whether contractual or non-contractual) arising out of or in connection with it, its subject matter or formation shall be governed by and construed in accordance with the law of the State of California without regard to any conflict(s) of laws provisions thereof.

29.2 Each party irrevocably agrees that the courts of San Francisco, California shall have exclusive jurisdiction to settle any dispute or claim (whether contractual or non-contractual) arising out of or in connection with this Agreement, its subject matter or formation.

30. Counterparts and Electronic Signatures.

30.1 This Agreement may be executed in multiple counterparts by the parties hereto. All counterparts so executed shall constitute one agreement binding upon all parties, notwithstanding that all parties are not signatories to the original or the same counterpart. Each counterpart shall be deemed an original to this Agreement, all of which shall constitute one agreement to be valid as of the date of this Agreement. Documents executed, scanned and transmitted electronically and electronic signatures shall be deemed original signatures for purposes of this Agreement and all matters related thereto.

Exhibit 1

(Territory)

Primary: [Country Name]

Secondary: [Country Name]

Exhibit 2

(Product)

Products

ten9 as described on ten9’s website at https://about.ten9.com/pricing/#self-managed

Prices

The Reseller shall pay ten9:

For each Order Form executed, or otherwise agreed to between the parties, the prices stated on ten9’s website (stated in Section 1 above), with a discount of no greater than 3%.