Software License Agreement

SOFTWARE LICENSE AGREEMENT

IMPORTANT: PLEASE READ THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AGREEMENT, WHICH INCLUDES ALL EXHIBITS ATTACHED HERETO AND ALL ORDERS (COLLECTIVELY, “AGREEMENT”) CAREFULLY BEFORE USING THE SOFTWARE (AS DESCRIBED IN THE APPLICABLE ORDER).

IN CONSIDERATION OF YOUR CONTINUED COMPLIANCE WITH THIS AGREEMENT, AKKADIAN LABS LLC (“AKKADIAN”) IS WILLING TO LICENSE THE SOFTWARE DESCRIBED IN THE APPLICABLE ORDER, THE ASSOCIATED MEDIA ON WHICH IT IS PROVIDED (IF ANY), AND RELATED DOCUMENTATION (COLLECTIVELY, “SOFTWARE”), TO YOU AS THE ORGANIZATION NAMED IN THE ORDER (REFERRED TO AS “YOU” OR “YOUR”).

YOU AND AKKADIAN AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT UPON AND AS OF THE EARLIEST DATE (THE “EFFECTIVE DATE”) THAT (A) AKKADIAN SENDS AN EMAIL TO YOU WITH CREDENTIALS TO LOG INTO AKKADIAN’S WEBSITE FROM WHERE THE SOFTWARE MAY BE DOWNLOADED, (B) YOU DOWNLOAD THE SOFTWARE, OR (C) YOU INSTALL THE SOFTWARE.

IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ATTEMPT TO DOWNLOAD OR INSTALL THE SOFTWARE, OR, IF INSTALLED, MAKE NO FURTHER USE OF THE SOFTWARE, AND NOTIFY IN WRITING AKKADIAN OR THE RESELLER FROM WHOM IT WAS ACQUIRED WITHIN THIRTY (30) DAYS OF PURCHASE, AND THE PURCHASE PRICE WILL BE REFUNDED.

THE PARTIES ACKNOWLEDGE THAT EACH HAS READ THIS AGREEMENT AND AGREES TO BE BOUND BY THEIR TERMS AND CONDITIONS AS OF THE EFFECTIVE DATE.

1. EVALUATION LICENSE
A. Section 1 applies only if Customer has agreed to a limited time evaluation license of the Software (“Evaluation License”). During the Evaluation License period all Sections of this Agreement shall apply except for Sections 8, 9, 10, and 11.)
B. Customer has accepted an Evaluation License for the Software. Customer shall have the right to use the Software in the operating environment identified by Akkadian Labs and within the usage limitations agreed to by Akkadian Labs. Customer may use the Software solely for Customer’s own internal testing of the Software. No copies shall be made without Akkadian Labs prior written consent. Customer’s use of the Software is limited to evaluation purposes for a period of thirty (30) days starting from the date Customer installs the software (the “Evaluation Period”) subject to any extension of that Evaluation Period by Akkadian Labs and as evidenced in writing. At the conclusion of the Evaluation Period Customer shall either (a) cease use, and, for installed Software, delete or uninstall the Software and certify their complete deletion within Customer’s operating environment (including backup copies), or (b) advise Akkadian Labs in writing that Customer agrees to enter into a license or subscription plan pursuant to this Agreement and pay the appropriate license fee in which case Akkadian Labs shall provide Customer with a secure product key or other instructions which shall enable Customer to access or utilize the full functionality of the Software and Customer shall promptly apply such product key. Customer shall then be subject to all of the terms of this Agreement and shall pay the fees due upon receipt of an invoice therefor. IN CONNECTION WITH THIS EVALUATION LICENSE AKKADIAN LABS PROVIDES THE SOFTWARE “AS-IS,” WITHOUT WARRANTIES OF ANY KIND, AND AKKADIAN LABS SPECIFICALLY DISCLAIMS ALL IMPLIED, EXPRESS, AND STATUTORY WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT.

2. DEFINITIONS
The following terms have the associated meanings.
C. “Affiliate” means any entity in which one of the parties owns or controls, directly or indirectly, a majority of outstanding shares, securities or interests; or any parent company that owns or controls a majority of outstanding shares, securities, or interests in one of the parties.
D. “Channel Partner” means a reseller or other authorized representative of Akkadian Labs.
E. “Documentation” means all user and system materials that describe the functionality, performance, specifications and/or other aspects of the Software and includes installation instructions, user guides, specifications, operations manuals, training manuals, and periodic updates thereto.
F. “Order” means an order form order issued by Akkadian Labs or an Akkadian Labs Channel Partner on Akkadian Labs’ behalf, for ordering Product, set up, and/or Support Services. All Orders are incorporated by reference into this Agreement.
G. “Product” means the particular Software license or subscription service purchased, as stated in an Order.
H. “Software” means the proprietary software set forth in an Order as delivered or hosted by Akkadian Labs, which includes Updates and Upgrades.
I. “Update” means a release of the Software containing revisions, corrections, bug fixes, patches, new reports, and/or modifications to the existing version of the Software that do not materially enhance or change the existing functionality and that are offered at no additional charge by Akkadian Labs generally to its customers from time to time in Akkadian Labs’ sole discretion.
J. “Upgrade” means a release of or improvement or addition (e.g., a new module) to the Software containing significant enhancements, new features, or functionalities that Akkadian Labs generally make available to its customers for an additional fee.

3. LICENSE
K. Grant of License. Subject to Customer’s continued compliance with the terms and conditions of this Agreement, Akkadian Labs hereby grants Customer and its Affiliates, either (as stated in the Order):
3.1.1 Perpetual License. For Software provided as a perpetual license, a limited, nonexclusive, perpetual, non-transferable, non-sublicensable right and license to use, execute, store, and display the object code version of the Software and the Documentation (“Perpetual License”), or
3.1.2 Subscription License. For Software provided as a subscription-based, limited term license, a limited, nonexclusive, non-transferable, non-sublicensable right and license to use, execute, store, and display the object code version of the Software and the Documentation during the initial term set forth in the Order and during any renewal term (“Subscription License”), or
The applicable license is referred to as the “License”.
L. No terms or conditions on Customer’s purchase order or similar document shall be binding on Akkadian Labs.
M. Restrictions on Use
You may:
3.1.3 use the Software on the quantity and type of computers indicated in the applicable Order.
3.1.4 make one copy of the Software for archival purposes, or copy the Software onto the hard disk of Customer’s computer and retain the original for archival purposes;
3.1.5 use the Software on a network, provided that Customer has a Licensed copy of the Software for each computer that can access the Software over that network; and,
3.1.6 make printed copies of electronic Documentation for Customer’s internal use.
You may not:
3.1.1 transfer, assign, convey, sublicense, rent, lease, or provide or permit access to the Software (or any portion thereof), either directly or indirectly, to another person or entity or unlicensed division, subsidiary, or Affiliate), and any of the foregoing acts in this paragraph in violation hereof shall be of no power or effect;
3.1.2 distribute, sell, sublicense, rent, lease, use, or provide or permit access to the Software (or any portion thereof) for any purposes other as expressly permitted under this Agreement;
3.1.3 directly or indirectly reverse engineer, decompile, disassemble, modify, translate, make any attempt to discover, modify or use the source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions), or create derivative works from the Software, and any such derivative works or other modifications shall automatically be owned by Akkadian Labs upon creation;
3.1.4 utilize any equipment, device, software, or other means designed to circumvent or remove any form of product key or copy protection used by Akkadian Labs in connection with the Software, or use the Software together with any authorization code, product key, serial number, or other copy protection device not supplied by Akkadian Labs or through an authorized Channel Partner;
3.1.5 use the Software to develop or facilitate development of a product which is competitive with any Akkadian Labs product offerings;
3.1.6 post or otherwise publish electronic Documentation of the Software for access outside the licensed organization;
3.1.7 use a previous version or copy of the Software after Customer has installed a replacement set or an upgraded version and, upon upgrading the Software, all copies of the prior version must be uninstalled or rendered unusable;
3.1.8 remove any product identification, proprietary, copyright or other notices contained in the Software;
3.1.9 provide any product key or login information to a third party unless expressly authorized by Akkadian Labs in writing in advance; or,
3.1.10 use the Software or product keys in any manner not expressly authorized by this Agreement.
N. User Administration. At all times during this Agreement, Customer shall designate one or more employees to serve as the “User Administrator” for Customer. The User Administrator shall solely be responsible for authorizing, issuing and deauthorizing a login name, password, and any other credentialing information (collectively, “Login Credentials”) to its authorized users (“Authorized Users”), administering security profiles of Authorized Users, and inputting data regarding the Authorized Users. Customer agrees that each Authorized User will be assigned unique Login Credentials, and that no Login Credentials will be shared or otherwise utilized by two or more individuals at any time. Customer shall be solely responsible for the security of Login Credentials issued to each Authorized User. Customer shall timely deauthorize all Authorized Users that are no longer to have access to the Software. Customer agrees to comply with the procedures specified by Akkadian Labs from time to time regarding obtaining and updating passwords or other security measures for the Software. Customer is responsible for all acts and failures to act of its Authorized Users, and for ensuring that all Authorized Users are permitted by applicable law to access the Customer data. Akkadian Labs shall have no responsibility or liability for any damage or loss caused by the failure of Customer to deauthorize an Authorized User (e.g., a terminated employee).

4. FEES AND PAYMENTS
O. Payment Terms. Customer shall pay all invoices as set forth below. All fees shall be paid in U.S. dollars.
4.1.1 Channel Partner Orders. For payments to an Akkadian Labs Channel Partner, payment terms shall be as stated in the Order.
4.1.2 Direct. For payments to Akkadian Labs: All fees shall be paid within thirty (30) days of Customer’s receipt of invoice. Renewal Subscription Licenses and Support Agreements shall be invoiced at least thirty (30) days before the end of the then-current Term, unless stated otherwise in an Order. For all amounts that are not paid to Akkadian Labs by Customer when due Customer agrees to pay a late charge equal to the lesser of one and one half percent (1.5%) per month, and the maximum amount allowed by applicable law, calculated on the outstanding balance from the due date until the date of full payment. Customer shall pay Akkadian Labs’ attorneys’ fees, court costs, and related expenses if any amounts due are collected by or through an attorney or collections service. In the event that Customer requires Akkadian Labs to use Customer’s vendor management service in connection with the ordering, invoicing, and/or payment process and such vendor management service imposes a service charge upon Akkadian Labs for the use of the service, Customer agrees to pay Akkadian Labs a fee to offset such service charge(s).
P. Overdue Payments. If payment of any fee is overdue, Akkadian Labs may: suspend the License, providing the Support Services, and/or cancel the License renewal related to the overdue fee until such delinquency is corrected. Akkadian Labs will notify Customer in advance of any such action. Customer agrees to pay interest on all overdue amounts in the amount of the lesser of one and one-half percent (1.5%) per month or the maximum rate allowed by law.
Q. Taxes. For payments to Akkadian Labs, Customer shall be responsible for payment of all taxes (other than taxes based on Akkadian Labs’ income), VAT taxes, fees, duties, and other governmental charges, and any related penalties and interest, arising from any payments due to Akkadian Labs under this Agreement or the delivery of the Software to, license of the software Product to, or performance of any Support Services for, Customer, but only if invoiced by Akkadian Labs. Customer shall make all payments to Akkadian Labs free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments to Akkadian Labs shall be Customer’s sole responsibility, and Customer shall provide Akkadian Labs with official receipts issued by the appropriate taxing authority, or such other documentary evidence that Akkadian Labs may reasonably request, to establish that such taxes have been paid.
R. Audit. During the Term of this Agreement and for a period of one (1) year thereafter: (1) Customer shall maintain complete and accurate written records of its Software use solely for the purpose of Akkadian Labs confirming compliance with the License usage metrics and limitations in the Order(s); and (2) Akkadian Labs shall have the right, no more than once per year, during normal business hours and upon reasonable prior written notice, to inspect and audit Customer’s records to verify that Customer has complied with the License usage metrics and limitations (such as, but not limited to, for determining the actual number of employees and devices involved) in the applicable Order(s). In the course of conducting the audit, Akkadian Labs shall abide by Customer’s standard site access rules and regulations, and shall take steps to minimize any disruption to the normal conduct of Customer’s business. Akkadian Labs shall pay its own expenses for the audit. If the audit reveals any amounts owed for any billing period, Customer shall promptly pay such amounts plus the applicable late fees.

5. TERM AND TERMINATION
S. Term. This Agreement shall commence on the Effective Date and continue until expiration as stated below in this Section 5 depending on the type of License granted (the “Term”, which includes renewal terms, as applicable), unless earlier terminated by either party as expressly permitted by this Agreement.
5.1.1 Perpetual License Term. The Perpetual License granted herein is perpetual commencing on the Effective Date and continuing until and unless terminated earlier by either party as provided herein.
5.1.2 Subscription License Term. The Limited License granted herein commences on the Effective Date and expires at the end of the Term stated on the Order, unless renewed for an additional renewal term prior to expiration of the then-current term.
T. Termination. Either party may terminate this Agreement for cause upon written notice to other party in the event the breaches this Agreement and, other than Customer’s payment obligations, fails to remedy such breach within thirty (30) days of the date of notice, where such breach is curable with commercially reasonable efforts (e.g., a breach of confidentiality or reverse engineering of the Software are examples of incurable breaches). Customer may terminate this Agreement without cause by providing Akkadian Labs with at least sixty (60) days’ prior written notice, provided that Customer shall pay all amounts due up to the effective date of such termination. No refund shall be provided for any fees paid if Customer terminates this Agreement without cause.
U. Effect of Termination. Upon termination of this Agreement all obligations of Akkadian Labs under this Agreement and any maintenance agreement shall cease and (a) for Subscription License Products, Customer shall have no right to use the Software for any purpose and Customer shall immediately cease all use of and delete or uninstall all copies thereof and promptly certify the same to Akkadian Labs in writing, (b) for Perpetual License Products, Customer may continue to use the Software and Documentation.

6. OWNERSHIP
V. The Software provided on a Perpetual License or Subscription License basis is licensed, not sold and ownership of all intellectual property rights shall remain with Akkadian Labs. The Software is owned by Akkadian Labs or its licensors and is protected by copyright as well as other intellectual property laws. Unauthorized reproduction or distribution of the Software is prohibited and subject to civil and criminal penalties. Except as set forth in this Agreement, no express or implied license or right of any kind is granted to Customer regarding the Software. Akkadian Labs reserves all rights not expressly granted herein. The Software is licensed as a single product and its component parts may not be separated.

7. UPDATES; UPGRADES
W. All Updates and Upgrades to the Software and related Documentation delivered to Customer are subject to this Agreement.
X. Implementation of Updates. Akkadian Labs reviews its Software on a regular basis for potential security vulnerabilities and, if one is found, endeavors to provide an updated version on a timely basis to its Customers who have a Support Agreement. Akkadian Labs Products are downloaded as an appliance with security features that deny access to the Software except for HTTPS-443 and SSH-22. Software Updates may at times possibly contain patches to enhance or address potential security or other issues. Customer agrees to promptly install all Updates supplied by Akkadian Labs. Customer acknowledges that failure to do so may render the Software nonconforming to updated Documentation or vulnerable to unauthorized access or other intrusion, and Customer agrees to assume all risks arising such failure. Akkadian Labs will not be liable for inoperability of the Software or unauthorized access to Customer’s systems or data due to failure of Customer to timely install Updates. Akkadian Labs may terminate Support Services if Customer fails to comply with this Section 7.2.

8. SUPPORT SERVICES
Y. Sections 8.1.1 and 8.1.2 below apply only if Customer purchases a Perpetual License to the Software. In the event Customer purchases a Subscription License to the Software, Sections 8.1.1 and 8.1.2 below do not apply as Support Services are included in the paid Subscription License.
8.1.1 Initial Support Period. Akkadian Labs requires that Software be purchased with an initial support services agreement (“Support Agreement”). Accordingly, Akkadian Labs provides Customer the Support Services as described below for a period of twelve (12) months (or longer if purchased and set forth in the applicable Order) following the purchase date (the “Initial Support Period”).
8.1.2 Extended Support. Customer has the option to purchase Support Services annually for additional twelve (12)-month periods (or such periods as the parties may agree) commencing at the end of the Initial Support Period, (“Extended Support”) from Customer’s Channel Partner, or if Customer has none, then from Akkadian Labs, by paying the then-applicable fee (“Extended Support Fee”). The Extended Support Fee is due and payable prior to the expiration of the then-current support period purchased. If Customer purchases additional Software Licenses during any Extended Support period, Customer will pay, in addition to and along with the license fee for such additional Licenses (and in addition to amounts provided above), the then-current Support Services fee for each such License, pro-rated for the remainder of the Extended Support Period. Akkadian Labs may suspend service and/or terminate the agreement for Extended Support if Customer fails to pay the invoiced Extended Support Fee within thirty (30) days following the commencement of any period of Extended Support.
Z. Support Services. Pursuant to a Support Agreement Akkadian Labs shall provide the Support Services as set forth in the Support Level Agreement of Exhibit A, which is attached hereto and incorporated herein (the “Support Services”). Akkadian Labs provides support for the current and the most recent prior version of the Software for twelve (12) months after the release of the next version. Notwithstanding anything to the contrary, Support Services do not include on-site work. Akkadian Labs does, however, encourage and support on-line remote diagnosis of problems with the Software using such third-party software such as LogMeIn, PC Anywhere, Laplink, etc. All on-site work (including travel time) is billed as Other Charges at Akkadian Labs’ then-current standard rates. Remote deployment, implementation, consulting, or other services provided at Customer’s request by Akkadian Labs are outside of the Support Services, and Customer agrees to pay Akkadian Labs for such extra services at Akkadian Labs’ then-current rates. Akkadian Labs reserves the right to modify the Support Level Agreement from time to time by posting the updated Support Level Agreement on its Customer Portal and such updated version shall be effective (and incorporated herein) upon posting.
AA. Akkadian Labs will have no obligation to support the following (in Akkadian Labs’ sole determination):
8.1.3 Software not covered by an active Extended Support Agreement and/or not in compliance with a valid License. Akkadian Labs does not allow for partial coverage for Licenses; if purchased, an Extended Support Agreement must cover all Licenses purchased.
8.1.4 Software that is altered or modified other than as approved by Akkadian Labs or any portion of the Software incorporated with or into other software not specifically approved by Akkadian Labs.
8.1.5 Problems caused by misuse or misapplication of the Software.
8.1.6 Software installed on any computer hardware or in environments or in configurations not supported by Akkadian Labs (as set forth in the Documentation).

9. REINSTATEMENT OF LAPSED SUPPORT
BB. If Customer’s budget or other reason prevents Customer from continuing Extended Support, the Software will not be disabled at expiration of the Initial or Extended Support Period, but, as of the date of expiration of the Term, Customer will not have further access to Updates, Upgrades, or Support Services.
CC. If Customer later desires to resume Support Services within eighteen (18) months of the date Extended Support has expired or was terminated, Customer will be charged as follows:
9.1.1 The full amount of the next twelve (12) months of Extended Support;
9.1.2 Any time and costs for any on-site visits for updating the Software; and,
9.1.3 A catch-up fee of fifty percent (50%) of the cumulative amount of Extended Support that would have been paid if Extended Support had been maintained (calculated on an annual basis)
The amounts set forth above in Section 9.2 cover, among other expenses, the continuing development and evolution of the Software during Customer’s lapsed Support Services period. The fact that Customer did not avail itself of Support Services during the period the Software was covered by Extended Support is no cause for adjustment.
DD. If Customer wishes to have Support Services reinstated more than 18 months after lapsing, reinstatement is not available and Customer will have to re-purchase the Software and/or Service.

10. WARRANTY
EE. Limited Warranty. Akkadian Labs warrants that for ninety (90) days from the Effective Date (the “Warranty Period”) the unmodified Software when operated on the designated computer and operating system will substantially perform as described in Documentation provided by Akkadian Labs (the “Warranty”). Akkadian Labs does not warrant that: (a) the Software will meet Customer’s requirements; (b) the Software will operate in combinations Customer may select for use; (c) the operation of Software will be uninterrupted or error-free; or (d) all Software errors will be corrected. If Customer reports within the Warranty Period the Software’s non-conformance to the Warranty, Akkadian Labs shall, at its option, either correct the non-conformance, provide Customer with a reasonable procedure to circumvent the problem, or, if Akkadian Labs can do neither of the foregoing, accept return or uninstallation of the Software by Customer, refund the License fee paid for that Product. Akkadian Labs will replace any defective media without charge if it is returned to Akkadian Labs within the Warranty Period. The foregoing in this Section 10.1 are Customer’s sole and exclusive remedies for any breach of the Warranty. The Warranty shall not apply (i) in the event the Software has been altered, modified or converted by Customer or any third party, serviced by any unauthorized third party, or any non-conformance to the Warranty is related to any third party software or hardware; (ii) if the Software is used with hardware or software not specified in the Documentation; (iii) if any modifications are made to the Software by Customer or any third party; (iv) to defects in the Software that are due to accident, abuse or improper use by Customer or its contractors; or, (v) to any evaluation version or other Software provided on a no-charge or evaluation basis. Any replacement Software will be warranted for the remainder of the original Warranty Period.
FF. Disclaimer of Other Warranties. AKKADIAN LABS MAKE NO OTHER REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SOFTWARE OR DOCUMENTATION. AKKADIAN LABS AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT: (I) THE USE OF THE SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (II) THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (III) ANY STORED CLIENT DATA WILL BE ACCURATE OR RELIABLE, (IV) ERRORS OR DEFECTS WILL BE CORRECTED; AND, (V) EXCEPT FOR EXPENDING COMMERCIALLY REASONABLE EFFORTS TO PROTECT AGAINST SUCH VIRUSES, THAT THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. AKKADIAN LABS SPECIFICALLY DISCLAIMS ALL OTHER IMPLIED OR STATUTORY WARRANTIES, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. No employee, agent, representative, or reseller (Channel Partner) of Akkadian has the authority to bind Akkadian to any oral representation or warranty concerning the Software. No reseller, dealer, agent, or employee is authorized to make any modification, extension, or addition to this Warranty. The limited Warranty gives Customer specific legal rights. Customer may have other rights that vary from state to state.

11. INDEMNIFICATION
GG. Intellectual Property Infringement Indemnification. If any alleged infringement of U.S. patent or copyright is asserted by a third party against Customer based upon Customer’s use of the Software (a “Claim”), Akkadian Labs will indemnify, defend, hold Customer harmless for all claims, liability, damages, losses, judgments, fines, penalties, assessments, and other expenses (including, but not limited to, reasonable attorney’s fees and litigation costs) (collectively, all of the foregoing referred to as “Losses”), provided Customer shall provide Akkadian Labs notice of such claim within ten (10) days of the assertion of such claim. Akkadian Labs shall have the exclusive right, if it chooses, to control and direct the investigation, defense, or settlement of such claims. Akkadian Labs shall receive Customer’s reasonable cooperation and assistance. If a Claim is made or appears likely, Akkadian Labs may, at Akkadian Labs’ option, (1) procure for Customer the right to continue using the Software under the terms of this Agreement, or (2) replace or modify the Software so as to be non-infringing without material decrease in functionality. For Perpetual License or Subscription License Products, if Akkadian Labs determines that neither of the two above options are reasonably available, Akkadian Labs may terminate the applicable License upon written notice to Customer, and refund Customer a pro rata portion of the price Customer paid for the Software if so terminated within twelve (12) months of the Effective Date, or, if so terminated beyond such twelve (12) months, for the remainder of the unexpired Term based upon a five (5) year straight line useful life from date of Software receipt as well as refund a pro rata share of any associated pre-paid and unused Support Agreement fees. For Subscription Service Products, if Akkadian Labs determines that neither of the two above options are reasonably available, Akkadian Labs may terminate the applicable License upon written notice to Customer, and refund a pro rata portion of any pre-paid but unused portion of the subscription term. This Section 11.1 states Akkadian Labs’ entire obligation and Customer’s exclusive remedy regarding any Claims against Customer for infringement. Upon such return and refund, if any, neither party shall have any further obligation to the other regarding the Software under this Agreement or otherwise. Akkadian Labs will have no obligation for any Claim to the extent such Claim is based on (i) a modification of the Software by Customer or a third party, or use of the Software outside the scope of this Agreement; (ii) combination, operation, or use of the Software with non-Akkadian Labs products, software, services or business processes; or, (iii) Customer data.
HH. General Indemnification. Each party agrees to indemnify, defend, and hold harmless (collectively referred to as “indemnify” or its derivatives) the other party and their respective employees, directors, officers and agents harmless against all Losses arising out of or resulting from any third-party claims made or proceedings brought against the other party to the extent such Losses arise pursuant to the indemnifying party’s performance or failure to perform under this Agreement and/or results from the indemnifying party’s negligence or willful misconduct, provided that the foregoing obligations in this Section 11.2 are except to the extent due to indemnified party’s breach of this Agreement or its (or its Affiliates’ or contractors’) actions, omissions, or negligence.
II. Indemnification Procedure. Either party that is seeking to be indemnified under this Section 11 (an “Indemnified Party”) for a third-party claim (as defined above) must (i) promptly notify the other party (the “Indemnifying Party”) of the claim; and (ii) give the Indemnifying Party the sole control over the defense of such claim. However, if an Indemnified Party fails to notify the Indemnifying Party promptly, the Indemnifying Party will be relieved of its obligations under this Section 11 only if and to the extent that its ability to defend the claim is materially prejudiced by such failure. The Indemnifying Party may settle or compromise a claim without the Indemnified Party’s prior approval of any such settlement or compromise only if (a) such settlement involves no finding or admission of any breach by an Indemnified Party of any obligation to any third party, (b) such settlement has no effect on any other claim that may be made against an Indemnified Party or any defense that an Indemnified Party may assert in any such claim, and (c) the sole relief provided in connection with such settlement is monetary damages that are paid in full by the Indemnifying Party. Upon the Indemnifying Party’s assumption of the defense of such claim, the Indemnified Party will reasonably cooperate with the Indemnifying Party in such defense, at the Indemnifying Party’s expense.

12. LIMITATION OF LIABILITY
JJ. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL AKKADIAN LABS OR ITS LICENSORS BE LIABLE TO CUSTOMER FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS OR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY, SPECIAL, OR SIMILAR DAMAGES, THE COST OF OBTAINING SUBSTITUTE GOODS, INCLUDING ANY LOST PROFITS ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF AKKADIAN LABS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO CASE SHALL AKKADIAN LABS’ OR ITS LICENSORS’ TOTAL AGGREGATE LIABILITY (A) FOR ANY SOFTWARE OR SERVICES UNDER THIS Agreement EXCEED THE PURCHASE PRICE FOR THE SOFTWARE OR (B) FOR ANY SERVICES, EXCEED THE FEES PAID BY CUSTOMER FOR THE SERVICES (EXCLUDING SUPPORT SERVICES) WHICH DIRECTLY CAUSED THE DAMAGES ALLEGED. SOME STATES AND COUNTRIES, INCLUDING MEMBER COUNTRIES OF THE EUROPEAN ECONOMIC AREA, DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATION OR EXCLUSION IN THIS SECTION MAY NOT APPLY TO CUSTOMER. The disclaimers and limitations set forth above in this Section 12 will apply regardless of whether or not Customer accepts the Software. Section 12 will survive any expiration or termination of this Agreement and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose. This Section 12.1 shall not impair the U.S. Government’s right to recover for fraud or crimes arising out of or related to a government contract as defined under any federal fraud statute, including the False Claims Act, 31 U.S.C. §§ 3729-3733.
KK. Any cause of action or claim Customer may have arising out of or relating to this Agreement must be commenced within twelve (12) months after the cause of action accrues, otherwise such cause of action or claim is permanently barred.

13. CONFIDENTIAL INFORMATION
LL. All non-public information (including, but not limited to, trade secrets) disclosed by either party to the other party, including portions of the Software not disclosed to the public (a) which is marked or identified as confidential or proprietary at the time of disclosure, or (b) that the receiving party knows or should reasonably know to be the confidential or proprietary information of the disclosing party given the nature of such information and the circumstances of its disclosure, except information that is: (i) already known to the receiving Party prior to disclosure; (ii) publicly known through no wrongful act or omission of the receiving Party; (iii) received from a third party without violation of law or contractual obligation; or, (iv) independently developed without use of the non-public information (collectively, “Proprietary Information”). Each party agrees to hold the Proprietary Information of the other party in strictest confidence and not to, directly or indirectly, copy, reproduce, distribute, disclose, or cause to be disclosed such Proprietary Information or utilize such Proprietary Information for any purpose whatsoever other than as expressly contemplated by this Agreement. However, confidential information may be disclosed by the U.S. or other government agency or government entity if required by law subject to reasonable prior written notice to Akkadian Labs (unless such notice is prohibited by law) so that Akkadian Labs has sufficient time to object to such disclosure. These obligations shall survive any termination of this Agreement, with respect to confidential information, for three (3) years and, with respect to trade secrets, continue for so long as such information constitutes a trade secret under applicable law.
MM. Neither party will publicize or disclose the terms or existence of this Agreement, other than to its financial or legal counsellors or potential investors or purchasers of a party, all of the foregoing under suitable written obligations of confidentiality.

14. RESTRICTED RIGHTS
NN. Software delivered to the U.S. Defense Dept. are delivered with Restricted Rights and the following applies: “Restricted Rights Legend: Use, duplication or disclosure by the Government is subject to restrictions as currently set forth in subparagraph (c)(1)(ii) the Rights in Technical Data and Computer Software clause at 252.227-7013 (or any successor regulation). Software delivered to a U.S. Government Agency not within the Defense, Dept. are delivered with “Restricted Rights” as defined in Commercial Computer Software – Restricted Rights at FAR 52.227-19.” Customer shall comply fully with all applicable laws and regulations of the United States and other countries (Export Laws) to assure that neither the Software, nor any direct products thereof are (1) exported, directly or indirectly, in violation of Export Laws, or (2) are used for any purpose prohibited by Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation.

15. FORCE MAJEURE EVENTS
OO. If by reason of (i) labor disputes, strikes, or lockouts (but excluding nonunion labor shortage or disputes); (ii) riots, war, acts of terrorism, or other civil disturbance; (iii) fire, flood, earthquake, tornado, hurricane, snow, ice, lightning, or other natural disasters, elements of nature or acts of God, pandemics or epidemics; (iv) outages, cable cuts, power crisis shortages, infrastructure outages or failures, internet failures, interruption or failure of telecommunications carriers or digital transmission links, network congestion, computer equipment failures, telecommunication equipment or other equipment failures, electrical power failures, loss of or fluctuations in heat, light, or air conditioning, all of the foregoing in this Subsection (iv) being of or due to third party providers or utility service providers; (v) acts of computer sabotage or file lockup (e.g., ransomware attack), DDOS or other network attacks, intrusion, or other failures; (vi) any law, order, regulation, direction, action or request of the United States, state or local governmental agency, department, commission, court, bureau, corporation or other instrumentality of any one or more of such instrumentality, or of any civil or military authority, or national emergencies, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown; or, (vii) national or regional shortage of adequate power or telecommunications or transportation (any of the foregoing is referred to as a “Force Majeure Event”), either party is unable to perform in whole or in part its obligations as set forth in this Agreement (other than payment obligations by Customer), then such party shall be relieved of those obligations to the extent it is so unable to perform and such inability to perform shall not make such party liable to the other party. A party shall promptly notify the other party in the event of a Force Majeure Event affecting the party’s ability to perform. Neither party shall be liable for any loss, injury, delays or damages suffered or incurred by the other party due to the above causes. In the event a Force Majeure Event occurs whereby either party is unable to perform in whole or in part its obligations as set forth in this Agreement for a period of thirty (30) consecutive days, the other party shall have the right to terminate this Agreement without termination liability.

16. DISPUTE RESOLUTION
PP. The exclusive means of resolving any dispute or claim arising out of or relating to this Agreement (including any alleged breach thereof) or the Software shall be by binding non-appearance-based arbitration. In the event a party elects arbitration, such arbitration shall be initiated before a single arbitrator having at least ten years’ experience with commercial software agreement disputes according to the rules (“Rules”) of the American Arbitration Association. The arbitrator and the parties shall comply with the following rules: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction. The arbitrator will have no authority to award attorneys’ fees, punitive damages, or any other monetary relief not measured by the prevailing party’s actual damages. The arbitrator(s) will not make any ruling, finding, or award that does not otherwise conform to the terms and scope of this Agreement. All aspects of the arbitration shall be treated as confidential, as provided in the Rules. Before making any disclosure permitted by the Rules, a party shall give written notice to the other party and afford such party a reasonable opportunity to protect its interests. Notwithstanding the foregoing, either party may bring a lawsuit for injunctive relief, e.g., to stop unauthorized use or abuse of the Software, disclosure of Akkadian Labs’ confidential information or trade secrets, or intellectual property infringement, without first engaging in the dispute resolution process described above, and without the need to post a security bond. Any proceeding to enforce this arbitration agreement, including any proceeding to confirm, modify, or vacate an arbitration award, may be commenced in any court of competent jurisdiction. The prevailing party in any dispute shall be entitled to its attorneys’ fees and costs.

17. GOVERNING LAW
QQ. This Agreement will be governed by the Laws of the State of New York, without reference to conflict of laws principles. Customer specifically acknowledge the exclusive jurisdiction and venue of the state and federal courts located in the City of New York, Borough of Manhattan, State of New York for any permitted legal proceedings relating to this Agreement. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

18. SURVIVAL.
RR. The following provisions will survive any expiration or termination of this Agreement: Sections 4.4, 12, 13, and 16-19.

19. GENERAL
SS. Agreement and Exhibits thereto sets forth the complete understanding of the parties regarding the terms and conditions applicable to the Software and all services and supersedes all prior or contemporaneous communications, representations or agreements between the parties, whether oral or written, regarding the subject matter of this Agreement. If any provision of this Agreement is not enforceable, all other provisions will remain in full force and effect. Titles and paragraph headings are for the convenience of reference and are not a part of this Agreement. The background recitals form a material part of this Agreement. Other than the Support Level Agreement, this Agreement shall not be modified or amended except in writing signed by both parties. This Agreement may not be assigned, conveyed or transferred, whether by contract, merger, or operation of law (collectively referred to in this Section 17.1 as “assign” or “assignment”) by Customer without the prior written consent of Akkadian Labs. Akkadian Labs may assign this Agreement in whole or in part, including the right to receive payments, upon written notice to Customer, provided that assignee of Akkadian Labs’ rights agrees to be bound by the terms and conditions of the Agreement and any agreements entered into between the parties which form a part of this Agreement. Any assignment in violation hereof shall be of no power or effect. All notices required to be given pursuant to this Agreement shall be given in writing and delivered by fax, hand, certified first class mail, email, or overnight courier, addressed to the receiving party at the contact information stated herein or in the Order. Each party will provide written notice to the other party in the event of a change in contact information. Notice shall be deemed given (i) on the day when sent by fax, with evidence of successful transmission retained; (ii) on the day when delivered by hand; (iii) three (3) days after mailing by first class mail with tracking receipt retained; (iv) one (1) day after delivering to a recognized overnight delivery carrier; or, (v) on the date sent by electronic mail, provided that confirmation is sent by one of the other foregoing methods.

© Copyright 2021 Akkadian Labs LLC. All rights reserved.
v2/2/2021
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EXHIBIT A
Support Level Agreement
This Support Service Level Agreement (“SLA”) defines the maintenance and support services (“Support Services”) which Akkadian Labs, LLC (“Akkadian Labs”) shall provide to the customer (“Customer”) in accordance with an order from Customer for such Support Services for the Software. This SLA is a part of the Software License and Subscription Agreement. Akkadian Labs may revise this SLA from time to time in its sole discretion, which shall be effective upon posting to Akkadian Labs’ Customer Portal website.

1. TELEPHONE; EMAIL SUPPORT. Akkadian Labs will provide reasonable telephone and email support for problem determination evaluation and resolution of problems arising during normal operation of the Software. Akkadian Labs may require Customer to provide a written assistance request describing the problem.
A. Support Phone Number: 1-800-818-4128
B. Support Email Address: support@akkadianlabs.com

2. SUPPORT HOURS. Support Services are provided during Akkadian Labs’ business hours of 9:00 a.m. to 5:00 p.m., Monday through Friday, Eastern Time, excluding federal and other public and Akkadian Labs’ holidays (“Business Hours”).

3. ON-SITE EMERGENCY SUPPORT. Customer may request Akkadian Labs to provide on-site emergency support services as a separate billable service at Akkadian Labs’ standard rates.

4. UPDATES. The Support Services purchased by Customer, pursuant to the applicable Order, include Updates at no additional cost.

5. PROBLEM DETERMINATION AND RESOLUTION. Akkadian Labs’ resources will be allocated to resolve reported problems based on the severity level set forth in the table below and Akkadian Labs will use commercially reasonable efforts to provide an acceptable response, resolution, workaround, or a plan for the provision of a resolution or acceptable workaround in the timeframe stated:
Severity Level
Definition
Acknowledgement Time*
Resolution Commitment
Critical
An error that causes a catastrophic failure substantially impacting Customer’s business.
2 hours
Akkadian Labs and Customer will commit full-time resources for problem resolution, to obtain workaround, or reduce the severity of the error.
High
An error that causes Akkadian Labs product to fail without significant business impact. Causes a substantial reduction in protection.
8 hours
Akkadian Labs and Customer will commit full-time resources during normal business hours for problem resolution, to obtain workaround, or reduce the severity of the error.
Normal
An error that causes only minor impact on use of the product.
12 hours
Akkadian Labs and Customer will commit resources during normal business hours for problem resolution.
*Acknowledgement times are during Business Hours.
A. Acknowledgement. Once a problem has been reported, Customer will receive an acknowledgement via email or phone, as to the receipt of the problem as reported and a confirmation of the problem severity. Akkadian Labs will begin the process of problem determination and resolution at that point.
B. Status Updates. During the problem determination and resolution process, Customer may receive regular communications, via email or phone, as to the status of the problem determination and resolution.
C. Resolution. In response to the problem reported, Customer will receive, as appropriate, one of the following resolutions: an existing correction, a new correction, a viable workaround, or a plan on how the problem will be addressed.
D. Severity Re-classification. If Customer determines that a previously reported and in-progress issue’s severity needs to be re-classified or escalated, Customer should issue a new call or email to Akkadian Labs’ technical support team.

6. EXCLUSIONS. Akkadian Labs will have no obligation to support the following:
A. Software not covered by an active Support Agreement and/or not in compliance with a valid License. Akkadian Labs does not allow for partial coverage for Perpetual License or Subscription License Products; a Support Agreement must cover all Perpetual License or Subscription License Products purchased.
B. Software that is altered or modified other than as approved by Akkadian Labs or any portion of the Software incorporated with or into other software not specifically approved by Akkadian Labs.
C. Any Software that is not the current major release or immediately previous major release with most current Update.
D. Problems caused by misuse or misapplication of the Software.
E. Software installed on any computer hardware/software configurations not supported by Akkadian Labs.
Akkadian Labs, in its sole discretion, shall determine whether any of the foregoing exclusions are applicable to Customer.

7. CUSTOMER’S OBLIGATIONS FOR OPERATIONAL SUPPORT.
A. Contact Person(s). Customer will designate up to two (2) contact person(s) (or such other replacement individuals as Customer may designate in writing) (each a “Contact Person”), who shall be the sole contacts for the coordination and receipt of the Support Services set forth in this SLA. Each Contact Person shall be knowledgeable about the Software. If Akkadian Labs is unable to contact any designated Contact Person through the specified means for a period of time and such contact would be helpful for performing the Support Services, Akkadian Labs may refuse to perform the Support Services until Akkadian Labs is able to contact a designated Contact Person, in which case the times for resolution set forth in Section 5 of this SLA will be suspended for such period of time.
B. Remote Access. For the purpose of problem determination and analysis, Customer will provide, as necessary and at Customer’s discretion, the technical support team with remote access capabilities into Customer’s systems running the Software.
C. Supporting Data. Customer will provide reasonable supporting data to aid in the identification and resolution of the issue.
D. Installation. Customer will be responsible for installing all Updates and Upgrades.