1. Use of the Service; Associated Services.

1.1 License. Subject to the terms and conditions of this Agreement, Kolena grants to Customer a non-sublicensable, non-transferable (except with an assignment of this Agreement as authorized herein), nonexclusive, limited right to, during the term of an applicable Order Document, internally access and use the Kolena’s software-as-a-service solution (as identified on an Order Document, the “Service”).  Customer shall use the Service and any documentation, data or other information related thereto that is received from Kolena or its representatives solely for Customer’s internal use of the Service for the purpose for which it is provided.  Customer acknowledges and agrees that the Service may incorporate functions that will inhibit Customer from exceeding the scope of the use right.

1.2 Restrictions.  Customer shall not and shall not permit any third party to:  (a) use the Service, any documentation or other information provided by Kolena hereunder, to create any service, software, documentation or data that is similar to or competes with any aspect of the Service; (b) reproduce or modify the Service or any portion thereof, or embed the Service or any portion thereof into any commercial product of Customer; (c) sublicense, rent, sell, loan, lease, disclose, display, distribute, or otherwise transfer the Service, or any portion thereof, or use it for timesharing, rental or service bureau purposes, or for the benefit of a third party; (d) reverse assemble, reverse compile or reverse engineer the Service, or any portion thereof, or otherwise attempt to discover any Service source code, or underlying Confidential Information (as defined in Section 2.1 below), or otherwise circumvent any technological measure that controls access to the Service; (e) copy, adapt, merge, create derivative works of, translate, localize, port or otherwise modify the Service.  Customer agrees to ensure that there is no breach, compromise or violation, by Customer employees, consultants, agents, customers, suppliers or independent contractors of such obligations and Kolena’s and its licensors’ rights, title and interest to the Service.

2. Confidentiality.

2.1 Definition. “Confidential Information” means any information disclosed by either party (the “Disclosing Party”) to the other party (the “Receiving Party”) pursuant to this Agreement that is (a) is in written, graphic, machine readable or other tangible form and is marked “Confidential,” “Proprietary” or in some other manner to indicate its confidential nature; or (b) in the case of oral or visual disclosure is identified as confidential at the time of disclosure; or (c) under the circumstances should in good faith be considered to be confidential whether or not marked. All pricing related information is Kolena’s Confidential Information.

2.2 Obligations.  Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except as set forth in this Agreement, and will not disclose such Confidential Information to any third party except as expressly permitted herein without the Disclosing Party’s written consent.  The Receiving Party shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of the Disclosing Party’s Confidential Information, but in no event less than reasonable care. The Receiving Party shall promptly notify the Disclosing Party of any actual or suspected misuse or unauthorized disclosure of any of the Confidential Information. In the event of any termination or expiration of this Agreement, each Receiving Party will either return or, at the Disclosing Party’s request, destroy the Confidential Information of the other Disclosing Party.  Notwithstanding the foregoing, the obligations set forth in this Section 2 shall not apply with respect to any information to the extent that it is: (a) already rightfully in the possession of the Receiving Party without restriction prior to the first disclosure hereunder as shown by records or files; (b) is already or becomes generally available to the public after the time of disclosure other than as a result of any improper action by the Receiving Party; (c) was rightfully disclosed to Receiving Party by a third party without restriction; or (d) was independently developed by Receiving Party or its employees without access to or reliance on such information.  The Receiving Party may make disclosures required by law or court order provided that, if practicable, the Receiving Party provides adequate notice and assistance to the Disclosing Party for the purpose of enabling the Disclosing Party to prevent and/or limit the disclosure.

2.3 Remedies.  Due to the unique nature of the Confidential Information, the Receiving Party agrees that any breach or threatened breach of this section of this Agreement may cause not only financial harm to the Disclosing Party, but also irreparable harm for which money damages may not be an adequate remedy. Therefore, the Disclosing Party shall be entitled, in addition to any other legal or equitable remedies, to seek an injunction or similar equitable relief against any such breach or threatened breach without the necessity of posting any bond.

3. Customer Data.

3.1 Generally. “Customer Data” means all (i) data provided by Customer or its systems or providers to Kolena, (ii) all data collected by the Service from Customer’s environment, and (iii) any reports and other data output generated for Customer via its use of the Service. As between the parties, Customer shall retain all right, title and interest in the Customer Data.  Subject to the terms of this Agreement, Customer hereby grants to Kolena a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data to the extent necessary to provide the Service to Customer. Customer represents and warrants that (i) it has all rights and authorization to provide the Customer Data, (ii) the provision of Customer Data, and Kolena’s use of the data as authorized hereunder, is allowed by Customer’s privacy policy, and (iii) Customer’s provision, use and maintenance of Customer Data complies with all laws, regulations and third-party rights.

3.2 Security. Kolena will implement and maintain an industry-standard information security program with administrative, physical, and technical safeguards designed to protect the integrity of Customer Data.

4. IP; Indemnity; Feedback

4.1 Ownership.  No intellectual property rights are assigned or transferred by either party in connection herewith.

4.2 Indemnity. Kolena shall indemnify and hold harmless Customer from and against any claim that the Service (as provided by Kolena) infringes any patent, copyright, or trademark, provided that Customer provides Kolena with: (i) prompt written notice of such claim (but in any event notice in sufficient time for Kolena to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer.  If Customer’s use of the Service is, or in Kolena’s opinion is likely to be, enjoined due to the type of infringement specified above, or if required by settlement, Kolena may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using the Service; or if (a) and (b) are commercially impracticable, (c) terminate the Agreement on ten (10) days’ notice and Kolena will promptly refund to Customer all fees paid in advance for the remainder of the term. The foregoing indemnification obligation of Kolena shall not apply: (1) if the Service is modified by any party other than Kolena, but solely to the extent the alleged infringement is caused by such modification; (2) if the Service is combined with other services or processes not authorized by Kolena, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Service; or (4) any action arising as a result of Customer Data or any third-party deliverables or components contained within the Service.

4.3 Feedback. Notwithstanding anything else, Customer grants Kolena a perpetual, irrevocable, royalty free, paid-up, sub-licensable, right and license to use, display, reproduce, distribute and otherwise exploit Feedback for any purposes. Kolena agrees that (i) Customer does not have to provide Feedback, and (ii) all Feedback is provided “AS IS”. “Feedback” means all suggestions for improvement or enhancement, recommendations, comments, opinions or other feedback provided by Customer (whether in oral, electronic or written form) to Kolena for the Service.

5. Fees.

To the extent applicable, Customer shall pay Kolena the fees for the Service as set forth above (“Fees”).  All Fees will be invoiced in advance (in U.S. dollars). Payments are due within seven (7) days from date of invoice.  Customer shall be responsible for all taxes associated with the Service other than taxes based on Kolena’s net income. Late payments will be subject to a finance charge of 1.5% for each thirty (30) day period (or less, if required by law). In addition, Customer will reimburse Kolena for all costs of collection. Notice for failure to pay may be provided via email.

6. Term; Termination.

This Agreement shall commence on the Effective Date and shall continue until terminated below. Either party may terminate this Agreement on thirty (30) days’ notice if there are no Order Documents in effect. Each Order Document will have the term set forth thereon, and will automatically renew for successive terms of equal length to the initial term unless either party provides the other party with written notice of non-renewal at least ninety (90) days prior to the end of the then-current term.  This Agreement and any Order Document may be terminated by either party on thirty (30) days’ prior notice if the other party materially breaches any of the terms of this Agreement or the Order Document and such breach remains uncured within such period (provided that, the notice must provide sufficient detail regarding the breach and expressly state the intent to terminate if not cured). Termination of this Agreement for breach will terminate all Order Documents. Upon termination or expiration of this Agreement, Customer’s right to use the Service will automatically terminate.  In the event of any termination for Kolena’s uncured breach as authorized above, Kolena will promptly refund all fees paid in advance for the remainder of the term. In the event of any other termination, all fees that but for termination would otherwise have been due for the full term are non-cancellable and non-refundable. Sections 2, 3, 4.1-4.3, 6, 8 and 9, as well as all use restrictions and any outstanding fees, shall survive any termination or expiration of this Agreement for any reason.

7. Warranties.

7.1 Mutual Warranties. Each party represents and warrants that (i) it has all right, power, and authority to execute this Agreement and perform hereunder, (ii) its activities in connection with this Agreement will not violate any laws or regulations, and (iii) its performance will not conflict with an obligations it has to any third party.

7.2 Limited Warranty.  Kolena warrants, for Customer’s benefit only, that the Service will operate in conformity, in all material respects, with the applicable Documentation.  Kolena does not warrant that Customer’s use of the Service will be uninterrupted or error-free.  Kolena’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, in Kolena’ sole discretion and at no charge to Customer, to use commercially reasonable efforts to provide Customer with an error correction or work-around that corrects the reported non-conformity, or if Kolena determines such remedies to be impracticable, to allow Customer to terminate the Subscription Term and receive as its sole remedy a refund of any fees Customer has pre-paid for use of the Service or as of the date of the warranty claim.  The limited warranty set forth in this Section 7.2 shall not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which the condition giving rise to the claim first appeared, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (iii) if the Service is provided on a no-charge or evaluation basis.

8. Disclaimer; Limitation on Liability.

EXCEPT FOR THE LIMITED WARRANTY IN SECTION 7.2, THE SERVICE IS PROVIDED “AS IS” AND KOLENA DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER PARTY SHALL BE LIABLE, UNDER ANY LEGAL OR EQUITABLE THEORY OF LAW, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT FOR ANY (I) INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE, (II) AMOUNTS IN THE AGGREGATE IN EXCESS OF THE FEES PAID BY CUSTOMER TO KOLENA DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD (OR, IF NO AMOUNTS HAVE BEEN PAID, SUCH AMOUNT SHALL BE US$1,000.00), OR (III) IN THE CASE OF KOLENA’S LIABILITY, THE COST OR PROCUREMENT OF SUBSTITUTE TECHNOLOGY OR SERVICES. THE LIMITATIONS ABOVE WILL NOT APPLY TO EITHER PARTY’S BREACH OF CONFIDENTIALITY OR CUSTOMER’S BREACH OF ANY USE RESTRICTIONS. FOR INDEMNITY OBLIGATIONS, THE CAP SET FORTH IN SECTION 7 WILL BE INCREASED BY FOUR TIMES (4x).

9. Miscellaneous.

9.1 Governing Law; Disputes.  This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of law provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods.  Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court), any dispute arising under this Agreement shall be finally settled in accordance with the Rules of the Judicial Arbitration and Mediation Service (“JAMS”) in accordance with such Rules.  To the extent the JAMS streamlined rules are available – they shall apply. The arbitration shall take place in San Francisco, California, in the English language and the arbitral decision may be enforced in any court. To the extent a claim cannot legal be arbitrated (as determined by an arbitrator), the jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in San Francisco, California and both parties hereby submit to the personal jurisdiction of such courts.

9.2 Severability.  If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.

9.3 Publicity.  Customer agrees that Kolena may use of Customer’s name and logo on Kolena’s web site and in Kolena promotional materials as part of a general list of customers. Any other marketing or promotion use is subject to Customer’s written approval (email is sufficient).

9.4 Entire Agreement.  This Agreement, including any referenced attachments and/or incorporated documents, shall constitute the entire understanding between the parties regarding the subject matter described herein and supersedes any previous communications, representations or agreements whether oral or written regarding such subject matter.

9.5 Modification; Waiver.  No change or modifications of any of the terms or conditions hereof shall be valid or binding on either party unless made in writing and signed by an authorized representative of each party making specific reference to this Agreement and the clause to be modified. No provision of right, power or privilege under this Agreement shall be deemed to have been waived by any act, delay, omission or acquiescence on the part of any party, its agents or employees, but only by an instrument in writing signed by an authorized representative of each party.

9.6 Relationship of the Parties.  The parties hereto shall each be independent contractors in the performance of their obligations under this Agreement, and nothing contained herein shall be deemed to constitute either party as the agent or representative of the other party, or both parties as joint venturers or partners for any purpose.  Each party is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith.

9.7 Assignment.  Neither party will assign or transfer this Agreement without the other party’s written consent; provided that, either party may, without consent, assign this Agreement to a successor to all or substantially all of its business or assets.  This Agreement shall be binding on and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

9.8 Notices.   Except as otherwise set forth in this Agreement, any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth on the first page of this Agreement, an Order Document, or at such other address as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.  In addition, any legal notices to Kolena must be delivered to the following email address: legal@kolena.com (but, notwithstanding earlier receipt via email, legal notices will be deemed received when the physical notice is received as set forth in preceding sentence).

9.9 Counterparts.  This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.