AppNeta End-User Subscription Agreement

Last revised on August 26, 2020

IMPORTANT NOTICE

PLEASE READ THE TERMS AND CONDITIONS OF THIS END-USER SUBSCRIPTION AGREEMENT (THIS “AGREEMENT”) CAREFULLY BEFORE PROCEEDING TO USE THE APPNETA, INC. (“APPNETA”) SOFTWARE OR SERVICES (EACH AS DEFINED BELOW).

BY USING THE SOFTWARE OR SERVICES, OR ACKNOWLEDGING “I ACCEPT”, YOU OR THE COMPANY OR LEGAL ENTITY YOU REPRESENT (“LICENSEE”) ACCEPTS AND AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU OR THE ENTITY YOU REPRESENT DOES NOT HAVE THE LEGAL RIGHT TO USE THE SOFTWARE OR SERVICES.

SCOPE OF AGREEMENT AND GRANT OF LICENSE

1.1. Scope of Agreement. AppNeta develops, markets and makes available access to certain software programs and individual program modules (collectively, “Software”), as well as related products and services, to its end user customers via either a software-as-a-service methodology or an on-premise deployment (such Software, products and services, collectively, the “Services”). Access to the Services is provided pursuant to this Agreement, and the specific Services and Software are set forth in quotes or other AppNeta ordering documents executed by the parties (each, an “Order”). Access to the Services includes use of any associated documentation, including user manuals, report templates, screen layouts and other materials made available in any form by AppNeta to Licensee in connection with the Services (the “Documentation”). Any corrections, updates and/or other software provided to Licensee by AppNeta shall be deemed Software or Services under this Agreement.

1.2. Access to Services. Subject to the terms and conditions of this Agreement, AppNeta hereby grants to Licensee a personal, limited, non-exclusive and non-transferable right during the applicable Subscription Term (as defined below) to access the Software (in object code form only) via the Services and to use the Services solely for its internal business purposes as set forth in this Agreement. Access to the Software and Documentation is provided as part of the Services, and as such they are licensed, not sold. All right, title and interest in and to the Services, the Software and the Documentation, and all copies thereof, remain exclusively with AppNeta and its licensors.

1.3. Documentation. Licensee shall be entitled to (a) use the Documentation internally solely to support its authorized use of the Services and (b) make that number of copies of the Documentation as are reasonably required for it to exercise its rights under clause (a). Any such copies shall include all trademarks or other proprietary legends where and as set forth in the original. Licensee agrees not to provide access to the Documentation to any third party except Authorized Users (as defined below).

1.4. Restrictions. Licensee shall not, and shall not attempt to (and shall not authorize or allow Authorized Users or any third party to attempt to): (a) disassemble, reverse engineer, decompile, or otherwise attempt to derive source code from the Software in whole or in part; (b) modify, adapt, create derivative works based upon, or translate the Software; (c) for hardware appliance-based Services, copy, install or use the Software on any of Licensee’s other computer systems or servers; (d) assign, transfer, re-license, sublicense, lease, loan, resell, distribute or otherwise grant any rights in the Software or the Services in any form to any other party, including commercial time-sharing, rental, or service bureau use; (e) use the Software, the Services or the Documentation on behalf of any third party or for any purpose other than monitoring, collecting, analyzing and using Licensee Data (as defined below) for Licensee’s internal business purposes; or (f) download or otherwise obtain a copy of any Software, whether installed in or accessible through any hardware provided by AppNeta in any form or otherwise (except as directed by AppNeta).

1.5. Authorized Users. The Services shall be used solely by employees and contractors of Licensee authorized by Licensee to use the Services under the rights granted pursuant to this Agreement and for which all applicable fees have been paid (“Authorized Users”). Licensee shall cause all Authorized Users to comply with Licensee's obligations under this Agreement and shall be responsible for any noncompliance with such obligations by any Authorized User.

1.6. Licensee Responsibilities. Licensee shall: (a) ensure that access credentials to the Services are kept confidential and access is enabled only through encrypted connections; (b) give employees appropriate permission levels to the Services, monitor their activities, and revoke access to the Services within 24 hours of termination of employment; (c) alert AppNeta within 72 hours of any security incidents that could impact the Services or AppNeta’s systems (e.g., compromised credentials, a stolen laptop, and network compromise); (d) maintain the security of servers and other devices (including, but not limited to, by implementing sufficient password protocols and the physical and environmental controls necessary to ensure availability of the Services); (e) maintain up-to-date operating system patching and active anti-malware on devices used to connect to Licensee’s environment; and (f) comply with all applicable laws and regulations in its use of the Services and in its collection, disclosure and use of Licensee Data, including those laws and regulations relating to personal data protection and privacy.

2. TERM OF AGREEMENT, SUBSCRIPTION TERM AND TERMINATION

2.1. Term of Agreement. The term of this Agreement shall commence upon the Effective Date and continue until expiration or termination of the last Order.

2.2. Subscription Term. The initial subscription term of the Services shall be as specified in the applicable Order and shall commence (a) in cases where the Software is loaded onto an appliance provided by AppNeta, on the delivery of the first appliance, or (b) in all other cases, the date on which the Software is made available to Licensee. If a valid ship-to address and all other required information are not provided by Licensee within 30 days of Order signature, AppNeta shall ship appliances to the bill-to address on the Order. Unless otherwise mutually agreed by the parties, subscriptions shall renew automatically for additional terms equal in duration to the expiring subscription term, unless either party gives the other party written notice of its intent not to renew the term at least thirty (30) days prior to the expiration of the then-current term (the initial subscription term and each subscription period, collectively, the “Subscription Term”). AppNeta reserves the right to increase the applicable subscription fee by no more than six (6%) percent for each renewal term, provided notice of any such increase is provided to Licensee no later than sixty (60) days prior to the expiration of the then-current Subscription Term.

2.3. Termination. Either party may, at its option and without further notice, immediately terminate this Agreement and the licenses granted hereunder if the other party: (a) breaches any material obligation under this Agreement and such breach is not cured within thirty (30) days after the receipt of written notice of the alleged breach; (b) admits in writing its inability to pay its debts generally as they become due; (c) makes a general assignment for the benefit of creditors; (d) institutes proceedings to be adjudicated a voluntary bankrupt, or consents to the filing of a petition of bankruptcy against it; (e) is adjudicated by a court of competent jurisdiction as being bankrupt or insolvent; (f) seeks reorganization under any bankruptcy act, or consents to the filing of a petition seeking such reorganization; or (g) ceases to do business as itself or through a successor.

2.4. Effect of Termination. Upon the effective date of termination of this Agreement, all licenses granted hereunder shall terminate, and Licensee shall immediately cease any and all use of the Services, Software and Documentation, return to AppNeta all copies of the Software and Documentation, and permanently and securely delete the Software and Documentation from any electronic media containing them, including from any appliance or other hardware or virtual machine on which they may have been installed. Upon AppNeta’s request, Licensee shall provide AppNeta with a statement signed by Licensee confirming that Licensee has no copies of the Software or Documentation in Licensee’s possession or control and has ceased all use of the Services, Software and Documentation. For ninety (90) days after the date of termination or expiration of this Agreement, Licensee shall have the right to download all copies of Licensee Data. Following such period, AppNeta shall destroy (and, upon request, certify in writing such destruction) all Licensee Data from any electronic media containing them. The terms of Sections 1.4, 2.4, 3, 5, 9, 10.2, 11, 12, and 13 shall survive termination or expiration of this Agreement in accordance with the provisions of this Agreement.

3. SERVICES FEES AND PAYMENT TERMS

3.1. Services fees shall be due and payable annually in advance unless otherwise stated on the Order, net thirty (30) days after Licensee’s receipt of the applicable AppNeta invoice. AppNeta will invoice Licensee upon commencement of the Subscription Term. All fees and charges hereunder are exclusive of all federal, state, municipal, and other governmental excise, sales, use, customs, value-added, and other taxes, fees, shipping or import fees or duties now in force or enacted in the future. Licensee agrees to pay on or before their due date all such taxes, fees, duties and charges which arise out of or in connection with this Agreement or any license granted herein, but excluding taxes based on AppNeta’s net income. Appliances are shipped on an FCA Origin basis, with title and risk of loss transferring upon delivery to the carrier. In the event Licensee purchases the Services from an authorized reseller of AppNeta, then pricing, payment, delivery and related terms will be agreed between Licensee and the reseller.

3.2. In the event of any overdue payments, AppNeta reserves the right to charge interest from the due date at the lesser of the rate of one percent (1%) per month (or the maximum rate permitted by law) and/or to suspend Licensee’s access to the Services. All costs of collection, including reasonable attorneys’ fees, shall be paid by Licensee. Unless otherwise specifically provided in this Agreement, all Services fees are non-refundable.

4. LICENSEE DATA

4.1. As between Licensee and AppNeta, Licensee has and shall retain sole and exclusive title and ownership of all Licensee Data and all intellectual property rights therein. “Licensee Data” means any data and information that is (a) provided, submitted and/or otherwise inputted by Authorized Users into the Services in the course of utilizing the Services, (b) subject to AppNeta’s intellectual property rights in the Services, generated by Licensee or any Authorized User in the course of utilizing the Services, or (c) otherwise collected by AppNeta from Licensee or any Authorized User; provided, however, that Licensee Data does not include Resultant Data (as defined below) or data, information or materials lawfully obtained by AppNeta from third parties.

4.2. Notwithstanding the foregoing, AppNeta shall have the right to use and disclose Licensee Data to: (a) provide the Services under this Agreement; (b) monitor Licensee’s use of the Services for security and other internal business purposes; (c) enforce the terms of this Agreement; and (d) generate Resultant Data for statistical and other analysis, including to improve the Services. “Resultant Data” means information, data and other material that are derived by or through the Services and are sufficiently different from underlying Licensee Data that such Licensee Data and the identity of Licensee or any Authorized User cannot be reverse-engineered or otherwise determined from the inspection, analysis or processing of such information, data or content.

4.3. AppNeta handles and protects Licensee Data in accordance with this Agreement and AppNeta’s privacy policy, which is available at https://www.appneta.com/privacy-policy/ and incorporated by reference and made part of this Agreement.

5. INTELLECTUAL PROPERTY RIGHTS

AppNeta and its licensors are the sole owners of the Services, Software, Documentation and Resultant Data (including any modifications or improvements made thereto) and of all copyright, trade secret, patent, trademark and other intellectual property rights therein and thereto throughout the world. Neither this Agreement nor any Order provide Licensee or any Authorized User with title to or ownership of the Services, Software, Documentation or Resultant Data, or to any copies or modifications thereof, but only the limited license granted under the terms and conditions of this Agreement.

6. SECURITY POLICY

As part of AppNeta’s commitment to information security, AppNeta maintains written information security policies and procedures regarding information classification, labeling, and handling, including: permissible methods for information transmission, storage, and destruction; acceptable use of Licensee’s assets, including computing systems, networks, and messaging; information security incident management, including data breach notification and collection of evidence procedures; authentication rules for the format, content and usage of passwords for Authorized Users, administrators, and systems; and access controls, including periodic reviews of access rights.

7. BUSINESS CONTINUITY MANAGEMENT

AppNeta also maintains a business continuity plan (“BCP”) that provides for the restoration of both technology and business operations in the event of an unplanned event. The BCP covers, among other things, AppNeta’s operations associated with its activities under this Agreement. AppNeta tests its BCP at least annually and will upon request provide Licensee with an attestation that AppNeta successfully conducted the most recent test of its BCP.

8. SUPPORT SERVICES

AppNeta provides standard support Services (the “Support Services”) at no additional charge. Standard Support Services are included in the Services fees.

9. CONFIDENTIAL INFORMATION

9.1. Each party agrees that any non-public information, data, materials or know-how, including without limitation, customer information, prices, fees, methods, software, algorithms, documentation, drawings, processes, techniques, technical and other business information which may be supplied by one party to the other party in connection with this Agreement, whether orally or in writing, that are either designated as proprietary and/or confidential at the time of disclosure, or which, by its nature, would be considered by a reasonable person to be proprietary and/or confidential (collectively, “Confidential Information”), are confidential and constitute valuable assets of the disclosing party. Without limiting the foregoing, (a) AppNeta acknowledges and agrees that Licensee Data are Confidential Information of Licensee, and (b) Licensee acknowledges and agrees that the Services, Software, Documentation, and statistical performance results of any evaluation or benchmark tests run on the Services by or on behalf of either Licensee or AppNeta are Confidential Information of AppNeta.

9.2. Confidential Information does not include: (a) information which is or becomes publicly available other than through disclosure in breach of this Agreement; (b) information disclosed or made available by a third party without restriction and without breach of an obligation of confidentiality; (c) information independently developed by one party without use of or reference to any Confidential Information of the other party, as evidenced by applicable documentation; or (d) information which was already known by the receiving party at the time of disclosure.

9.3. Each party agrees to use the Confidential Information only for the purposes specifically authorized in this Agreement, to hold such Confidential Information in strict confidence, and to not disclose any of the Confidential Information to any third party except as necessary to provide the Services or as otherwise contemplated under this Agreement. Each party agrees to limit access to Confidential Information to those employees and contractors whose use of or access thereto is necessary for the authorized use of the Confidential Information under this Agreement. Licensee agrees not to use, or allow any third party to use, any Confidential Information to aid in the development or marketing of any product similar to or competitive with the Services.

9.4. The obligations of non-disclosure set forth above shall not apply to the extent that a party is legally required to produce Confidential Information pursuant to a subpoena or other legal process or order of a court of competent jurisdiction, provided that such party provides prompt written notice to the other party of such process or order and produces only that portion of the applicable Confidential Information legally required under such process or order after the other party has had an opportunity to challenge such process or order.

9.5. Upon written request from the disclosing party, the receiving party shall return to the disclosing party all Confidential Information in the receiving party’s possession or control, and all copies thereof, or, at the disclosing party’s option, certify its permanent, secure destruction in writing.

10. LIMITED WARRANTY AND DISCLAIMERS

10.1. Limited Warranty. AppNeta warrants that, during the Subscription Term, the Services will substantially conform to the specifications contained in the Documentation. AppNeta’s sole responsibility under this limited warranty shall be to use commercially reasonable efforts to correct or replace the portion of the Services which fail to conform to such limited warranty, provided, however, that Licensee has reported in writing to AppNeta any defect or error claimed to be a breach of such warranty. AppNeta shall have no liability under the foregoing limited warranty if: (a) Licensee, an Authorized User or any third party acting on Licensee’s behalf modifies the Services; (b) Licensee fails to give AppNeta written notice of the claimed breach of warranty in a timely manner; (c) the failure to conform is caused in whole or part by persons other than AppNeta, or by products, equipment, software or operating environments not furnished by AppNeta; or (iv) Licensee fails to implement any correction, update, enhancement, improvement, expansion or revision thereto which AppNeta has provided to Licensee. Licensee shall be exclusively responsible for the supervision, management and control of Licensee’s and each Authorized User’s use of the Services and for the application of the Services to Licensee’s business.

10.2. Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY AGREED IN WRITING, THE EXPRESS WARRANTIES SET FORTH IN SECTION 10.1 ARE THE ONLY WARRANTIES GIVEN BY APPNETA WITH RESPECT TO THE SERVICES, SOFTWARE, AND DOCUMENTATION, WHICH ARE OTHERWISE PROVIDED ON AN AS-IS, AS-AVAILABLE BASIS. APPNETA AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, IRRESPECTIVE OF ANY PREVIOUS COURSE OF DEALING BETWEEN THE PARTIES OR CUSTOM OR USAGE OF TRADE. APPNETA DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.

11. LIMITATION OF LIABILITY

11.1. EXCEPT WITH RESPECT TO THE PARTIES’ INDEMNIFICATION OBLIGATIONS, CONFIDENTIALITY VIOLATIONS, LICENSEE’S OBLIGATION TO PAY ANY AMOUNTS OWED HEREUNDER, OR A PARTY’S LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, IN NO EVENT SHALL EITHER PARTY’S LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES PAID TO APPNETA BY LICENSEE DURING THE MOST RECENT TWELVE (12) MONTHS WITH RESPECT TO THE PARTICULAR SERVICES OUT OF WHICH SUCH CLAIM ARISES. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST OR ANTICIPATED REVENUE OR PROFITS, DIMINUTION OF VALUE OR LOSS OF GOODWILL, OR FOR ANY INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, REGARDLESS OF WHETHER IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11.2. IN NO EVENT SHALL APPNETA’S SUPPLIERS OR LICENSORS BE LIABLE FOR ANY SPECIAL, EXEMPLARY, INCIDENTAL, INDIRECT, DIRECT OR CONSEQUENTIAL DAMAGES, REGARDLESS OF WHETHER THEY WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

12. INDEMNIFICATION

12.1. AppNeta shall defend Licensee against any claim or action brought against Licensee, and will indemnify and hold harmless Licensee from and against any damages, liabilities, costs or expenses (including reasonable attorneys’ fees) awarded by a court or included as part of a final settlement, to the extent based upon the infringement by the Services of any United States patent, trademark or copyright of a third party (“Claims”), provided that (a) AppNeta is promptly notified in writing of any Claim, (b) AppNeta has sole control over the defense and/or settlement of the Claim, and (c) Licensee gives AppNeta all available information and assistance (at AppNeta’s expense) to enable AppNeta to do so.

12.2. In addition, if, as the result of any Claim, Licensee is enjoined from using the Services, AppNeta, at its sole option and expense, may: (a) procure the right for Licensee to continue to use the Services; (b) replace or modify the Services so as to make them non-infringing (without materially impacting functionality or performance); or (c) if AppNeta is not able to accomplish either of the foregoing alternatives on commercially reasonable terms, terminate Licensee’s license to the Services and refund to Licensee that portion of the fee prepaid for the then-current Subscription Term which reflects the unused portion of such Subscription Term.

12.3. The foregoing indemnity shall not apply if the Claim results from: (a) Services that have been modified by anyone other than AppNeta or its subcontractors; (b) Licensee’s use of the Services with software, hardware or services not provided by AppNeta; (c) misuse of the Services or other breach of this Agreement; (d) use of other than the most current, unaltered corrections and updates to the Services which have been provided to Licensee at no additional charge; or (e) compliance by AppNeta with designs, plans or specifications furnished by or on Licensee’s behalf. AppNeta shall not be liable hereunder for any settlement made by Licensee without AppNeta’s advance written approval. Licensee will indemnify, defend and hold harmless AppNeta from and against any Claims brought against AppNeta arising out the circumstances described in this paragraph.

12.4. THE FOREGOING STATES THE ENTIRE LIABILITY OF APPNETA WITH RESPECT TO ANY THIRD PARTY INFRINGEMENT CLAIMS.

13. GENERAL

13.1. Marketing Usage. AppNeta may use Licensee’s name and logo in its marketing materials and on its website pursuant to Licensee’s guidelines and trademark usage policies which are provided to AppNeta in advance, provided that the parties must mutually agree prior to issuing any press release or other public statement regarding this Agreement.

13.2. Commercial Computer Software. If any Services or Documentation are acquired by or on behalf of an agency or instrumentality of the United States government, Licensee acknowledges and agrees that such Services or Documentation are "commercial computer software" or "commercial computer software documentation" developed at private expense and that, absent a written agreement to the contrary, the government's rights with respect to such Services or Documentation shall be as set forth in this Agreement, pursuant to FAR § 12.212(a) and/or DFARS § 227.7202-1(a), as amended and as applicable.

13.3. Force Majeure. Notwithstanding anything in this Agreement to the contrary, no default, delay or failure to perform on the part of either party, excluding Licensee’s payment obligations, shall be considered a breach of this Agreement if such default, delay or failure to perform is due to causes beyond such party’s reasonable control, including, but not limited to, strikes, lockouts or other labor disputes, riots, civil disturbances, actions or inaction of governmental authorities or suppliers, epidemics, war, embargoes, severe weather, fire, earthquakes, acts of God or the public enemy, nuclear disasters, the infrastructure of the Internet, or default of a common carrier.

13.4. Choice of Law. This Agreement and all claims related to it shall be construed and governed in all respects according to the laws of the Commonwealth of Massachusetts, without regard to any conflict of law provisions. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

13.5. Export Laws. Neither party shall commit any act or request the other party to commit any act which would violate the export control laws, rules or regulations of the United States or any other country.

13.6. Waiver. No waiver or failure to exercise any option, right or privilege under the terms of this Agreement by either of the parties hereto on any occasion or occasions shall be construed to be a waiver of the same on any other occasion or of any other option, right or privilege.

13.7. Assignment. Neither party may assign this Agreement without the other party’s prior written consent, except (a) to an affiliate, (b) in the event of a sale of all or substantially all of such party’s assets or stock, or (c) in the case of an assignment by AppNeta of monies due or becoming due. In any such event, any assignee shall comply with all of the terms and conditions of this Agreement.

13.8. Independent Contractors. The parties are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties.

13.9. Entire Agreement. This Agreement, together with any Orders, contains the entire understanding and agreement between Licensee and AppNeta and supersede all prior agreements or understandings, oral or written, relating to the subject matter hereof. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any preprinted or standard terms or conditions in any invoice or purchase order shall be of no effect. In the event of any conflict or inconsistency between an Order and this Agreement, the Order shall control. If the parties enter into a written Master Subscription Agreement, such agreement will take precedence over this Agreement.

13.10. Future Commitments. AppNeta has made no commitments or promises orally or in writing with respect to delivery of any future software features or functions. In relation to any future software features or functions, all presentations, RFP responses and/or product roadmap documents, information or discussions, either prior to or following the date herein, are for informational purposes only, and AppNeta has no obligation to provide any future releases or upgrades or any features, enhancements or functions, unless delivered under a support program or specifically agreed to in writing by both parties. Customer acknowledges that no purchasing decisions are based upon any future software features or functions.