1)       INTRODUCTION

1.1. This Master Agreement (“Master Agreement”) is between Addova, Inc. a Georgia corporation located at 13010 Morris Rd, Suite 650, Alpharetta, GA 30004 or the Addova Affiliate identified on the Schedule (“Addova”) and Your organization, (“Client” or “You” or “Your”), is effective on the date set forth on the signature page hereto or the date set forth in the referencing Schedule, as applicable and specifies the terms and conditions agreed between the Parties as a foundation for their relationship as further defined in the applicable Addendums. If Client is bound to more than one agreement with Addova with respect to the Addova Offering, and if those agreement terms vary, then the order of precedence of those agreements is as follows: an agreement executed by Addova and Client that expressly in writing supersedes all other agreements, an electronic version of an agreement accepted pursuant to a Schedule or formal written quote, and any other electronic agreement provided to Client by Addova.

1.2. The Master Agreement may incorporate any applicable Addendum attached hereto.

 

2)       DEFINITIONS

2.1. “Addendum” means the additional terms and conditions applicable to the Addova Offering attached hereto.

2.2. “Affiliate” with respect to Client means any legal entity in which the Client directly or indirectly Controls.

2.3. “Agent” means a single installation of the agent software on a specific operating system instance which can be identified as a unique host identification on a hardware server or, in the case of a device without an operating system, on a single computerized device managed by Client and which Agent communicates with the Addova Server to transform directions from the Addova Server into action tasks. A Server may have multiple operating system instances installed on it (through partitioning or virtualization). Each instance of the operating system on a partitioned/virtualized server must license an Agent.

2.4. “Agreement” means this Master Agreement, the applicable Addendum and applicable Schedule, and any document incorporated expressly therein by reference.

2.5. “Authorized Use Limitation” means the limitation on usage of SaaS as measured by the Billing Metric specified in the Schedule.

2.6. “Addova Affiliate” means any company which owns, is owned by, or is under common ownership with Addova. Ownership means having Control.

2.7. “Addova Control” means the Addova proprietary software designed to allow Administrative Users to configure, manage and monitor Addova proprietary software applications for Purchased Services and to utilize Addova Add-On Services acquired under an Order.

2.8. “Addova Offering” means the individual offering (such as software, services, software as a service, Hosting, Support, Essentials, Professional Services, etc.) made available by Addova as defined in the Addendum and/or Schedule.

2.9. “Addova Server” means the Software’s automation and remediation data center dedicated to: (i) processing information provided by the Agents; and (ii) transforming that information into computational tasks directed back to the Agents for the proper implementation and functionality of the Software.

2.10. “Confidential Information" means any information, maintained in confidence by the disclosing Party, communicated in written or oral form, marked as proprietary, confidential or otherwise so identified, and/or any information that by its form, nature, content or mode of transmission would to a reasonable recipient be deemed confidential or proprietary, including, without limitation, Addova Offerings, Quotes, Schedules, Order Form, Documentation, and any benchmark data and results produced.

2.11. “Client Materials” means any data, materials, items or information supplied or available to Addova under the Agreement, the Addova Offering and/or Addova Server.

2.12. “Documentation” means the documentation, technical product specifications and/or user manuals, published by Addova that is made generally available with Addova Offerings.

2.13. “External Software” means software installed, utilized, uploaded, stored or processed by End Users and/or by Client through the Addova Offering (excluding the Addova Platform), as well as any other software, product or service not provided by Addova that Client or any End User or Client Affiliate installs or uses with the Addova Offering.

2.14. “Fees” means the charges applicable for Purchased Services, as stated under the applicable Order for the respective Purchased Services.

2.15. “Free Offerings” means Addova Offerings that Addova makes available to You free of charge. Free Offerings exclude Addova Offerings offered as a free trial and Addova Offerings licensed by Client for a fee.

2.16. “Help Desk” shall mean a service providing information and support to Client and End Users.

2.17. “Intellectual Property Rights” means any and all patent rights, copyrights, moral rights, trademark rights, rights in trade secrets, design rights, database rights, domain name rights, and any other form of intellectual property rights (registered and unregistered) recognized in any jurisdiction worldwide.

2.18. “Laws” means all applicable laws, regulations, statutes, rules, orders and other requirements of any applicable international, federal, state or local governmental authority.

2.19. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents programs, or the like.

2.20. “Portal” shall mean Addova’s support portals, including but not limited to the support portal that allows Client to order, add or otherwise manipulate the elements of the Addova Offering, as well as proprietary Service Delivery Platforms to view and monitor the systems of its End Users.

2.21. “Named Users” means a specific individual or device designated by Client to use or is managed by the Addova Offering as specified in the Documentation. A non-human operated device or process may be counted as a Named User as specified in the Documentation if such device requires unique identification to the Addova Offering (i.e. its own access credentials). Named Users' login credentials are for designated Named Users only and may not be shared among multiple individuals. Named Users' login credentials may be reassigned to new Named Users if the former users no longer require access to the Addova Offering.

2.22. “Parties” means individually and or collectively Addova and/or the Client.

2.23. “Purchased Services” means Addova Services acquired or subscribed by Client or a permitted Affiliate under a Purchased Service to include Addova Offerings as well as any additional services identified under a Schedule, including Professional Services, Support Services, Hosting, and Essentials each as further described in Section 3 of this Agreement and attached Addendums

2.24. “Non-Addova Application” means an on-premises, web-based, mobile, offline or other software application functionality that interoperates with an Addova Offering, which is provided by Client or a third party.

2.25. “Schedule” means a signed mutually agreed ordering document such as an Addova purchase order form, schedule of software and services or statement of work for the specific Addova Offering(s) licensed or purchased.

2.26. “Server” means a device that manages access to a centralized resource or service in a network.

2.27. “Subcontractors” means any entity which Addova or an Addova Affiliate has a contract for provision of certain services and will include terms to protect confidentiality and data.

2.28. “Term” means, with respect to each Schedule, the period during which the Addova Offering is provided, licensed or granted.

2.29. “Transfer” means sending Addova personal data or providing Addova access to personal data.

2.30. “Trial Period” means the period of time that Client accesses and uses Addova Offerings for evaluation or trial. If no time is indicated, then the period shall be set for thirty (30) days.

 

3)       ADDOVA OFFERINGS

Client’s Purchased Services under this Agreement are specified in the Order(s). Client agrees to the attached Addendums for each of the following products and subscriptions:

3.1. Hosting. Addova provides access to and subscriptions for Server Hosting. Addova reserves the right to contract with alternative IaaS Providers for the Addova Hosted Services and to include and/or substitute IaaS features and components based upon then-current availability from the IaaS Provider and as determined by Addova as appropriate to the operation and performance of the Addova Hosting. Addova endeavors to make Addova Hosting Services generally available 24 hours a day, 7 days a week, except for planned downtime by Addova or its IaaS Provider and circumstances beyond Addova’s reasonable control (including force majeure events).  Addova’s Service Level Availability Commitment (“SLA Commitment”), including its program for service level credits and associated service availability and credit limitations, is posted at (https://www.addova.com/legal/), as updated by Addova from time-to-time.

3.1.2. Add-On Services.  To provide additional features and/or capabilities for Hosting, Addova makes subscriptions available for access to Addova Add-On Services (as available for or applicable to the Utilized IaaS) under an Order, including the following current Addova Add-On Services, as well as such other Addova Add-On Services offered by Addova from time-to-time for the Utilized IaaS and as further described in a Hosting Addendum:

(a) Addova Disaster Recovery Protect. To provide additional assurance of business continuity for Client and its End Users and to supplement Client’s overall program and procedures for disaster recovery, Client may subscribe (depending on the Utilized IaaS) to the Addova Disaster Recovery Protect Service, under which Client may activate, and utilize through Addova Control.

(b) Addova Recovery Cloud Storage.  To provide additional capabilities for copying, back-up and recovery of Client Content and to supplement Client’s overall program and procedures for copying and business continuity, Client may subscribe (depending on the Utilized IaaS) to the Addova Recovery Cloud Storage Service, under which Client may make copies to its Client Content, such as to create a copy for e-Discovery or added backup purposes.

3.2. Professional Services. Subject to the respective Order, Addova will provide Professional Services as detailed in such Order or an associated statement of work. By way of example, Professional Services may include Technical Consulting, Security & Compliance Consulting, Advanced Integrations, Software Development, Database Administration, Training, Application/System Upgrades and/or other advanced interoperability issues requiring a Subject Matter Expert involving Client technology. Fees for such Professional Services are set forth in the applicable Order.

3.3. Support Services. Addova’s “Customer Care” is made available to Client for no additional Fee for Ordering, Billing Inquires, Non-technical Inquires and/or documentation. Support Services refer to the technical support services for Servers and/or Named User(s).

3.4. Essentials. Addova Essentials are optional Addova licensed and Partner Services to provide minimum cost barrier entry, pricing and terms to critical business products. Client understands Essential Services are pass-through fees described under License Fees in section 10.3 and further in Essentials Addendum. Information on current, applicable fees for production use of Addova Essentials Service are available on the Price List including a minimum monthly charge.

 

4)       CLIENT RESPONSIBILITIES

Client will (a) be responsible for the accuracy, quality and legality of Client Data and Client Materials, the means by which Client acquired Client Data and Client Materials, Client’s use of Client Data and Client Materials with the Addova Offering, and the interoperation of any Non-Addova Applications with which Client uses Addova Offering, (b) use commercially reasonable efforts to prevent unauthorized access to or use of Addova Offering, and notify Addova promptly of any such unauthorized access or use, (c) use Addova Offering only in accordance with this Agreement, Documentation, the Schedules and applicable laws and government regulations, (d) comply with terms of service of any Non-Addova Applications with which Client uses Addova Offering and (e) be solely responsible for granting access and use to third parties of Client Data and Client Materials. Any use of the Addova Offering in breach of the foregoing by Client or Users that in Addova’s judgment threatens the security, integrity or availability of Addova’s software or services, may result in Addova’s immediate suspension of the Addova Offering, however, Addova will use commercially reasonable efforts under the circumstances to provide Client with notice and an opportunity to remedy such violation or threat prior to any such suspension. Client is responsible for ensuring that the security of the Addova Offering is appropriate for Client’s intended use and the storage, hosting or processing of Client’s data.

4.1. Implementation of Addova Offering. Unless separately provided as a Professional Service (as specified under an Order), once activated by Addova, Client is responsible for implementing the Purchased Services in accordance with the Documentation, including, without limitation, installing the Addova Client on End User Devices as well as the installation and/or implementation of any other software required for access to and use of the Addova Offering.  In addition, Client is responsible for following the best practices identified in the Documentation for the implementation and operation of the Online Product Service, including, for example, with respect to Client’s pre-deployment requirements, deployment, pre-release testing, monitoring, operations and upgrade of any External Software and for updating operating systems (such as Microsoft Windows, MacOS, Android and iOS).  Unless separately provided as a Professional Service (as specified under an Order), Addova is not responsible for any installation of the or for performing any implementation services with respect to third party products and/or services.  By way of example and not limitation, unless separately provided as a Professional Service (as specified under an Order), Addova is not responsible for effectuating integration or interoperability between the Addova Offering and any software products or services utilized by Client but not provided under this Agreement as a Purchased Service.  Addova will not be responsible for any failure to meet its SLA Commitment (and shall not be liable for any service level credits or other remedies) or for performing Support Services to the extent such failure or requested or required Support Service is attributable to Client’s failure to meet obligations of Client under this Section 3.1.  

4.2. Training of End Users. Unless separately provided as a Professional Service (as specified under an Order), Client is responsible for the training of End Users and for assuring that such End Users are able to use the Addova Offering in accordance with the associated specifications and restrictions, as well as for applying best practices for training End Users appropriately concerning operating system updates.

4.3. Compliance with this Agreement. Client is responsible for compliance by End Users and Client Affiliates with the terms and conditions of this Agreement (including, without limitation, the IaaS Provider Terms), the End User Terms, the Microsoft Customer Agreement (as applicable), and all applicable Laws in connection with Addova Offering, and for all use of the Addova Offering by its End Users or through End User Devices. Client shall require its End Users to agree to the End User Terms prior to access or use of Addova Offering. In addition, Client is responsible for maintaining the confidentiality and security of all accounts for End Users and End User Devices and for the associated passwords and access credential. Any violation by End Users or Client Affiliates of this Agreement or End User Terms shall constitute a breach by Client for purposes of Section 11.2 of this Agreement. 

4.4. First Response to Incidents. Client is responsible, at its own cost, for all direct support of its End Users.  If an Incident is submitted by an End User, Client has the obligation to provide the necessary response or technical support directly to the End User, exercising utmost diligence to readily resolve the Incident(s).  If Client attempts and fails to resolve the Incident, Client may Order support with Addova in accordance with the procedures set forth in the Support Services or Professional Services.

4.5. External Software. Client is fully and solely responsible for any External Software, that Client or any End User or Client Affiliate (or any other vendor, contractor, representative or agent of Client) installs or uses in conjunction with the Addova Offering, including, without limitation, any issues involving interference with, or degradation in performance of, the Addova Offering caused by such External Software. In addition, as between Addova and Client, Client is fully and solely responsible for compliance with all agreements with, and other requirements or terms of, the providers and/or publishers of such External Software. Addova shall not, and shall not be obligated to, advise or assist Client in any way with such compliance or any agreements, terms or obligations of Client with regard to External Software.  Unless separately provided as a Professional Service (as expressly specified under an Order), Incidents or other issues caused by such External Software are expressly excluded from any obligation of Addova under this Agreement, including, without limitation, any representation or warranty, indemnification, SLA Commitment and/or Support Services.  Client acknowledges and agrees that resolution of performance issues caused by such External Software or Client Content may require that Client subscribe to a higher tier of or additional Addova Services, which may require an additional Fee.   Use of any External Software is governed by the terms of the respective agreement or license between Client (and/or its End User) and the third-party provider or publisher of such software, products or service.   Addova is not a party to, and is not bound by, such separate agreement(s) or license. 

4.6. Client Content.  Client understands and agrees that it is fully and solely responsible for all maintenance, management, availability, security, accuracy, quality, integrity, accessibility, privacy, backup, and legality with respect to Client Content, as well as compliance with all applicable Laws with respect to such Client Content and for any infringement or violation of any Intellectual Property Rights or other rights of third parties with respect to such Client Content or by Client or its End Users.  Client will secure and maintain all rights in Client Content necessary for Addova to provide the Purchased Services to Client without violating the rights of any third party or otherwise imposing any obligation or liability on Addova. Addova is not responsible for any loss, change or alteration to Client Content and does not and will not assume any obligations with respect to Client Content other than as expressly set forth in this agreement or as required by applicable Law.  Addova acknowledges that it acquires no rights in the Client Content under this Agreement, except to the extent necessary for Addova to provide the Purchased Services to Client.  

(a) Content Acceptable Use Policy. Client agrees to comply with, and shall require its End Users to comply with, the then-current Addova acceptable use policy requirements (“Addova Acceptable Use Policy”), with regard to the use of Client Content in conjunction with the Addova Offering.  The Addova Acceptable Use Policy may be found at www.Addova.com/legal.

(b) Prohibition on Addova Access to Client Content.  Addova represents and warrants that Addova’s access to Client Content in providing Addova Offering is limited to the items of End User Activity Data.  Addova acknowledges and agrees that, except as necessary to provide the Addova Offering and to the limited extent permitted with respect to End User Activity Data of this Agreement, Addova’s access and use of Client Content is strictly prohibited.  Addova shall make available the Addova Offering in such a way that Addova is not required to, and does not, access Client Content (other than End User Activity Data).  Addova represents and warrants that, except as required to provide the Addova Offering, Support Services, or Professional Services, its personnel are technically incapable of accessing or using the Client Content through the Addova Platform.  Addova personnel shall not attempt to access or use Client Content other than as expressly permitted under this Agreement with respect to End User Activity Data.  To the extent that Client inadvertently exposes Addova personnel to Client Content beyond End User Activity, such as in the course of Addova providing Support Services (e.g. troubleshooting through screen sharing), such Client Content shall not be retained, processed or used by Addova or its personnel beyond what is needed to provide the Support Service, and Client shall limit such exposure to the minimum extent required for Addova to render the requested service to Client.

(c) Termination of Client’s Access through Addova Offering to Client Content. Upon termination or expiration of a Subscription Term or this Agreement, Client Content will no longer be accessible through Addova Offering and Client agrees that it is Client’s responsibility to take appropriate measures to retain backup copies of Client Content outside of the Addova Offering prior to termination or expiration of the applicable Subscription Term or this Agreement.  Notwithstanding anything to the contrary in the foregoing, at Customer’s request in conjunction with the termination or expiration of a Subscription Term or this Agreement, Addova will assist Client, at Client’s expense, which may include, among other charges, Fees for Professional Services, and in collaboration with the IaaS Provider for the applicable Utilized IaaS, with the administrative transfer of access to Client Content through such IaaS Provider products or services.

(d) Addova Add-On Services.  Addova Add-On Services, such as the Addova Cloud Backup Service and Addova Disaster Recovery Service, are offered (depending on the Utilized IaaS) on a subscription basis to supplement Customer’s business continuity, IT administration and disaster recovery programs and procedures.  As such, Client acknowledges that it retains sole responsibility in utilizing such Addova Add-On Services for maintenance, management, availability, security, accuracy, quality, integrity accessibility, privacy, backup, recovery and legality of Client Content.  While Addova provides Support Services to address technical questions per the procedures indicated in the Support Services Description in support of Client’s use and operation of the Addova Add-On Services, Addova does not provide any data recovery services.  The Addova Add-On Services are designed to instigate certain features and/or functions of the Utilized IaaS and Addova is not responsible for any failures or errors attributable to operation or performance of the Utilized IaaS.  Addova is not responsible for any loss, alteration or corruption of Customer Content which may occur in conjunction with or incidental to Client’s use of any Addova Add-On Services.    

 

5)       CONFIDENTIAL INFORMATION

5.1. The Parties agree that when receiving Confidential Information from the disclosing Party, that the receiving Party shall hold it in confidence and shall not disclose or use such information except as permitted under the Agreement. The receiving Party shall treat the disclosing Party’s Confidential Information in the same manner as it treats its own proprietary and/or confidential information, which shall not be less than a reasonable standard of care, and Confidential Information only for the purposes described in the Agreement. Confidential Information may be disclosed to receiving Party’s employees, agents, financial advisors, contractors and attorneys on a need-to know basis and the receiving Party shall ensure that such persons maintain such Confidential Information pursuant to the terms of the Agreement.

5.2. The receiving Party shall be permitted to disclose Confidential Information in connection with a judicial or administrative proceeding to the extent that such disclosure is required under applicable law or court order, provided that the receiving Party shall, where reasonably possible, give the disclosing Party prompt and timely written notice of any such proceeding and shall offer reasonable cooperation in any effort of the disclosing Party to obtain a protective order. Notwithstanding the foregoing, Addova may disclose the terms of this Agreement and any applicable Schedule to a subcontractor or Non-Addova Application provider to the extent necessary to perform Addova’s obligations under this Agreement.

5.3. Confidential Information shall exclude: (i) information which the receiving Party has been authorized in writing by the disclosing Party to disclose without restriction; (ii) information which was rightfully in the receiving Party’s possession or rightfully known to it prior to receipt of such information from the disclosing Party; (iii) information which was rightfully disclosed to the receiving Party by a third Party having proper possession of such information, without restriction; (iv) information which is part of or enters the public domain without any breach of the obligations of confidentiality by the receiving Party; and (v) information which is independently developed by the receiving Party without use or reference to the disclosing Party’s Confidential Information.

5.4. Nothing in the Agreement will (i) preclude Addova from using the ideas, concepts and know-how which are developed in the course of providing any Addova Offerings to Client or (ii) be deemed to limit Addova’s rights to provide similar Addova Offerings to other customers. Client agrees that Addova may use any feedback provided by Client related to any Addova Offering for any Addova business purpose, without requiring consent including reproduction and preparation of derivative works based upon such feedback, as well as distribution of such derivative works.

5.5. The receiving Party agrees, upon request of the disclosing party, to return to the disclosing Party all Confidential Information in its possession or certify the destruction thereof.

5.6. In the event of a breach of this section, the disclosing Party may not have an adequate remedy at law. The Parties therefore agree that the disclosing Party may be entitled to seek the remedies of temporary and permanent injunction, specific performance or any other form of equitable relief deemed appropriate by a court of competent jurisdiction. For Confidential Information that constitutes a trade secret and for Addova software (including code) and Documentation, the material terms of the Agreement, and Client’s and/or Addova’s Confidential Information expressly designated in writing as perpetually confidential, the obligations of this section are perpetual and shall survive termination. For all other Confidential Information, the foregoing obligations shall extend for five (5) years from the date of initial disclosure.

 

6)       FEES

6.1. Client shall make timely payment through the Addova payment portal or through another method accepted by Addova after being invoiced or provide Addova with valid credit card information and shall keep such information updated with Addova. Client authorizes Addova to charge such credit card for all Addova Offerings licensed by Client for the initial and any renewal subscription term(s). Charges are billed in arrears on the first (1^st) of each month. The preceding first (1^st)) through the (15^th) of the prior month (the “Monthly Report”) measurements determine the usage and fees. If Client initially uses the Addova Service on a free trial basis during the period between Monthly Reports and has not deleted all Users in the account before the Report Date of the applicable month period, Client will be billed for the Service then in effect. All payments shall be made without deduction or set off and are due upon receipt of Addova’s invoice. Addova may at its option suspend the Client's access to the Services at any time after any payment due from the Client hereunder is more than fourteen (14) days late. Addova will notify the Client and make two attempts to remedy the situation before such action is taken. After such an occurrence, and upon payment of entire past due amount in addition to a reactivation fee, the services may be reactivated. The acceptance by Addova of any late payment or any delay by Addova in suspending access to the Service will not act as a waiver or modification

of any rights or remedies Addova may have hereunder with respect to the Client's late payment or other breach of this Agreement. The invoice shall be deemed accepted if it is not objected to in writing within ten (10) days of receipt. Client agrees to pay any applicable VAT, GST, sales tax, and any other applicable taxes (collectively the Taxes) in addition to the fees when such payments are due.

6.2. If Addova engages in electronic commerce on behalf of the Client or cardholder data relating to Client activities is accessed, transferred, stored, or processed by Addova, Addova shall protect data in accordance with the Payment Card Industry Data Security Standard (PCI DSS).

6.3. Unless otherwise prohibited by law or payment card terms, Addova reserves the right to charge additional fees, convenience fees, surcharges and/or offer cash discounts to offset and address the additional costs associated with Client’s selection of a credit card for payment.

6.4. With at least 30 days’ notice to Client, Addova reserves the right to increase prices. Addova may charge interest of one and a half per cent (1.5%) per month compounded for the entire overdue period or the maximum amount allowed by law unless Client has a bona fide dispute supported by written explanation. If Client’s account is overdue, Addova reserves the right, without notice, to withhold performance of its obligations under the Agreement, without liability, until such amounts are paid in full. Client agrees that Addova may disable or interrupt functionality of an Offering or refuse to renew or replace an Offering, rendering some or all aspects of the Offering unusable by Client, at any time to enforce its rights under the Agreement.

6.5. All fees are non-cancellable and non-refundable unless a pro-rated refund applies as provided in the applicable Addendum.

6.6. Security Deposit: ADDOVA RESERVES THE RIGHT TO REQUIRE A SECURITY DEPOSIT FROM CLIENT AT ANY TIME BASED ON CLIENT’S CREDIT STATUS AND/OR PAYMENT HISTORY.

 

7)       FREE TRIAL AND FREE OFFERINGS

7.1. Free Trial. If Client makes any use or registers for a free trial, Addova will make one or more Addova Offerings available to Client on a trial basis free of charge until the earlier of (a) the end of the free Trial Period for which You registered to use the applicable Addova Offering(s), or (b) the start date of paid use of the Addova Offering ordered by Client, or (c) termination by Addova in our sole discretion. Free trials are for non-production, evaluation purposes only. Additional trial terms and conditions may appear on the trial order or registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

7.2. Free Offerings. Addova may make Free Offerings available to You. Use of Free Offerings is subject to the terms and conditions of this Agreement. In the event of a conflict between this Section 7.2 (Free Offerings) and any other portion of this Agreement, this section shall control. Please note that Free Offerings are provided to You without charge up to certain limits as described in the Documentation. Usage over these limits requires Your purchase of additional resources or services. You agree that Addova, in its sole discretion and for any or no reason, may terminate Your access to the Free Offerings or any part thereof. Client agrees that any termination of Your access to the Free Offerings may be without prior notice, and You agree that Addova will not be liable to You or any third party for such termination. Additional terms and conditions may appear on the Free Offering registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

7.3. NO WARRANTY. ANY DATA YOU ENTER INTO THE FREE OFFERINGS OR FREE TRIAL MAY BE PERMANENTLY LOST. THE FREE OFFERINGS AND/OR FREE TRIAL ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND AND ADDOVA SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THE FREE OFFERING AND/OR FREE TRIAL. WITHOUT LIMITING THE FOREGOING, ADDOVA AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE FREE OFFERINGS OR FREE TRIAL WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE FREE OFFERINGS OR FREE TRIAL WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 12 (LIMITATION OF LIABILITY), YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO ADDOVA AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE FREE OFFERINGS OR FREE TRIAL, ANY BREACH BY YOU OF THIS AGREEMENT AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER.

 

8)       TITLE

Addova retains all rights, titles, copyrights, patents, trademarks, trade secrets and all other proprietary interests to all Addova Offerings and any derivatives thereof. No title, copyright, patent, trademark, trade secret or other right of Intellectual Property Rights not expressly granted under the Agreement is exchanged between the Parties.

 

9)       FUNCTIONALITY AND TRACKING; CESSATION OF OPERATION; ADDOVA ACCESS

9.1. Functionality and Tracking; Cessation of Operation. You understand and agree that the Addova Offering may be enabled through the use of Agents issued by Addova. For so long as You are not in breach or default with respect to any of Your obligations to Addova under this Agreement or otherwise, Addova will provide You with all license keys necessary to enable You to make normal use of the Addova Offering.

9.2. You agree that Addova may disable or refuse to renew or replace Agent(s), without notice, rendering some or all aspects of the Addova Offering unusable by You, at any time to enforce its rights under the Agreement. Addova will have no liability to You as a result of such cessation of operation. Except in the case of any perpetual license for which full payment has been received, the Addova Offering’s authorization protocol requires periodic notice of authority from Addova to extend operations past a given number of days. Because the Addova Offering follows this protocol, the Addova Offering may therefore cease to function when the Licensing Model reaches its authorized number of days. Addova will have no liability to You as a result of such cessation of functionality. Addova will take reasonable steps to prevent inappropriate termination of normal Addova Offering operations, and to reinstate such Addova Offering promptly upon notification by You of the need therefore and demonstration by You, to the reasonable satisfaction of Addova, that all amounts due and owing by You have been paid; provided that You are not otherwise in default of any of Your obligations under this Agreement. Addova does not warrant that operation of the Addova Offering will be uninterrupted and Addova will under no circumstances be liable for interruption of the Addova Offering or cessation of functionality of the Addova Offering as a result of Malicious Code or other like mediums. Addova may, in its sole discretion, suspend any Addova Offering due to a threat of stability or security. ADDOVA BEARS NO LIABILITY IN CONNECTION WITH THE TEMPORARY OR PERMANENT INTERRUPTION OF THE ADDOVA OFFERING AS DESCRIBED IN THIS SECTION.

9.3. You understand the Addova Offerings are programmed to track the number of deployed Agents, users and other usage and user related data, including, without limitation, monitoring of Your usage patterns of the Addova Offering, and You consent to all such operations. You at all times will enable, and will not hinder, impede, alter, prevent, or otherwise distort, the operation of such tracking and reporting functions, which reports will be periodically transmitted to the licensing Server.

9.4. Client acknowledges and agrees that Addova’s implementation team, support team and/or development team, whether as employees or agents of Addova (“Addova Representative(s)”), may periodically, as part of its implementation and tracking rights, require remote access in order to adequately support, troubleshoot and update the Addova Offering to maintain its functionality and You will not hinder, impede, alter or prevent such access.

9.5. Client acknowledges and agrees that Addova will collect, modify and analyze meta data and/or operations data, including, but not limited to, number of workstations by operating system, system log files and transaction counts which relate to system utilization and performance statistics, product performance, maintenance, all as deemed necessary by Addova.

9.6. Client may access reports and/or information through the Addova Offering until the end of the term of the license. All reports and other output will be produced in standard readable format (e.g., CSV, XML, PDF, HTML) and transmitted according to the transmission protocols used by the Addova Offering for such transmissions. Any specific reports or data requested by Client at the end of the term of the license that is not available through the Addova Offering or produced in customized formats will be charged based on the scope of the request. Such fees will be agreed in writing between Client and Addova.

 

10)    THIRD PARTY PRODUCTS AND NON-ADDOVA APPLICATIONS

10.1. NO WARRANTY. Under no circumstances shall Addova have any responsibility or liability to Client with respect to any product or service provided by a third party even if such product or services was resold or distributed by Addova. Such products and services are provided “as is” without warranty of any kind either express or implied. Client acknowledges and agrees that the performance warranties set forth in the applicable Addendums and Addova’s indemnification obligations below, do not apply to any product or service provided by a third party even if such product or services was resold or distributed by Addova. Addova or third parties may make available (for example, through a Marketplace or otherwise) third-party products or services, including, for example, Non-Addova Applications and implementation and other consulting services. Any acquisition by Client of such products or services, and any exchange of data between Client and any Non-Addova provider, product or service is solely between Client and the applicable Non-Addova provider. Addova does not warrant or support Non-Addova Applications or other Non-Addova products or services, whether or not they are designated by Addova as “certified” or otherwise, unless expressly provided otherwise in a Schedule. Addova is not responsible for any disclosure, modification or deletion of Client Data resulting from access by such Non-Addova Application or its provider.

10.2. Integration with Non-Addova Applications. The Addova Offering may contain features designed to interoperate with Non-Addova Applications. Addova cannot guarantee the continued availability of such features, and may cease providing them without entitling Client to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-Addova Application ceases to make the Non-Addova Application available for interoperation with the corresponding Addova Offering in a manner acceptable to Addova.

10.3. License Fees. Client acknowledges and agrees that the fees paid to Addova under this Agreement may include licensing fees for certain third party licenses ("Third Party Licenses") which are passed through to, and paid by, Client. Addova may attempt to negotiate bulk licensing fees for the Third Party Licenses; however, Client understands that Addova does not govern or control such fees. The Third Party Licenses may be subject to certain minimum licensing fees, as well as increases in the licensing fees from time to time without prior notice to Addova, and, notwithstanding anything to the contrary in this Agreement, such increases (if any) may be passed through to, and paid by, Client when incurred by Addova.

10.4. License Terms. Each service and software included in the Addova Offering ordered by Client may be subject to additional license terms, conditions and restrictions set forth in the online terms and conditions which Client will be required to review and accept via the Addova Portal and/or directly with a third party End User License Agreement prior to using such additional software and/or services within the Addova Offering ordered by Client (“Additional Terms”). If Client does not accept any applicable Additional Terms, Client may not use such ordered service and/or software. Client further agrees that it must accept any applicable Additional Terms prior to using any applicable services and/or software within the Addova Offering ordered by Client via the appropriate Addova Portal and accepted by Addova. All licenses of such additional services and/or software within the Addova Offering are granted subject to Client’s payment of applicable license fees and compliance with all applicable terms of this Agreement, including Additional Terms. Addova reserves the right to modify Additional Terms at any time. Client shall be responsible for any additional costs or fees associated with newer versions of such software and additional licenses.

 

11)    INDEMNIFICATION

11.1. Addova will indemnify, defend and/or, at its option, settle any third party claims that Client’s use of the specific Addova Offering licensed or purchased by Client under this Agreement infringes any valid patent or copyright within the jurisdictions where Client is authorized to use the Addova Offering. Addova may, at its sole option and expense: (i) procure for Client the right to continue to use the Addova Offering; (ii) repair, modify or replace the Addova Offering so that it is no longer infringing; or if (i) and (ii) are not commercially practicable, (iii) provide a pro-rated refund of the fees paid for the Addova Offering which gave rise to the indemnity calculated against the remainder of the Term from the date it is established that Addova is notified of the third Party claim. If the Addova Offering is Addova Software, and is licensed on a perpetual basis, an amortization schedule of three (3) years shall be used for the basis of the refund calculation.

11.2. Addova shall have no liability: (i) in the event the allegation of infringement is a result of a modification of the Addova Offering except a modification by Addova, (ii) if the Addova Offering is not being used in accordance with Addova’s specifications, related documentation and guidelines, (iii) if the alleged infringement would be avoided or otherwise eliminated by the use of an Addova published update or patch provided at no additional charge, (iv) a Claim against Client arises from a Non-Addova Application or Client’s breach of this Agreement, the Documentation or applicable Schedules, or (v) if the alleged infringement results from a combination of the Addova Offerings with any third party product. The indemnifications contained herein shall not apply and Addova shall have no liability in relation to any Addova Offering produced by Addova at the specific direction of Client. THE FOREGOING PROVISIONS STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF ADDOVA REGARDING CLAIMS OF INFRINGEMENT, AND THE EXCLUSIVE REMEDY AVAILABLE TO CLIENT WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHTS.

11.3. Each Party shall indemnify the other against all damages, fees, (including reasonable attorney’s fees) fines, judgments, costs and expenses as a result of a third party action alleging a bodily injury or death which arises from the provision of services under the Agreement, provided that such liabilities are the proximate result of gross negligence or intentional tortious conduct on the part of the indemnifying Party.

11.4. Client agrees to indemnify and defend Addova against any claim, demand, suit or proceeding made or brought against Addova by a third party: (i) alleging that any Client Data infringes or misappropriates such third party’s intellectual property rights, or arising from Client’s use of an Offering in violation of the Agreement, the Documentation, Schedule or applicable law; (ii) or any claims by any of Client’s customers, or arising out of or relating to Client’s relationship with any of Client’s customers (each a “Claim Against Addova”), and Client will indemnify Addova from any damages, attorney fees and costs finally awarded against Addova as a result of, or for any amounts paid by Addova under a settlement approved by Client in writing of, a Claim Against Addova.

11.5. Client shall have no liability: (i) in the event the allegation of infringement is a result of a modification of the Client Materials by Addova, (ii) if the alleged infringement would be avoided or otherwise eliminated by using materials provided by the Client to replace the infringing Client Materials; or (iii) if the alleged infringement results from a combination of the Client Materials and any third party products. THE FOREGOING PROVISIONS STATE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY AND OBLIGATIONS OF CLIENT REGARDING CLAIMS OF INFRINGEMENT WITH RESPECT TO CLIENT MATERIALS UNDER THE AGREEMENT.

11.6. The above indemnities are contingent upon: (i) the indemnified Party providing prompt notice of any claim of infringement and assistance in the defense thereof, (ii) the indemnifying Party’s sole right to control the defense or settlement of any such claim, provided that the settlement does not require a payment or admission of liability on the part of the other Party, and (iii) the indemnified Party not taking any actions or failing to take actions that hinder the defense or settlement process as reasonably directed by the indemnifying Party.

 

12)    LIMITATION OF LIABILITY

Under no circumstances shall Addova be liable for any losses relating to the Addova Offering or the actions of Addova in connection with this Agreement that was not brought to its attention by Client in writing within forty-five (45) days of its occurrence. No claim for Losses or other relief arising out of this Agreement or the Addova Offering may be filed by Client more than one (1) year following its delivery to Client. EXCEPT IN THE CASE OF INFRINGEMENT OF ADDOVA’S INTELLECTUAL PROPERTY RIGHTS AND OF THIRD PARTY CLAIMS ARISING UNDER THE INDEMNIFICATION SECTION, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW NEITHER PARTY (INCLUDING ANY OF ADDOVA’S SUPPLIERS) SHALL BE LIABLE FOR A) ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES OF ANY NATURE, INCLUDING, BUT NOT NECESSARILY LIMITED TO, LOSS OF PROFIT, DAMAGES RELATING TO MONIES SAVED OR FEES GENERATED AND OR ANY ACCURACY, RELIABILITY, SECURITY, LOSS OR CORRUPTION OF DATA BY USE OF ANY ADDOVA OFFERING, REGARDLESS OF WHETHER SUCH LOSS WAS FORESEEABLE OR A PARTY WAS APPRISED OF THE POTENTIAL FOR SUCH DAMAGES; AND B) IN NO EVENT WILL A PARTY’S LIABILITY, EXCEED THE FEES PAID AND OR OWED FOR THE PRODUCT OR SERVICE THAT GAVE RISE TO THE BREACH DURING THE PREVIOUS TWELVE (12) MONTHS PRECEDING THE CLAIM. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT CLIENT’S PAYMENT OBLIGATIONS UNDER THE “FEES” SECTION ABOVE.

 

EACH PARTY SPECIFICALLY DISCLAIMS RESPONSIBILITY OF THIRD-PARTY PRODUCTS AND SERVICES WITH WHICH YOU MAY UTILIZE WITH THE ADDOVA OFFERING, AND EACH PARTY SPECIFICALLY DISCLAIMS AND WAIVES ANY RIGHTS AND CLAIMS AGAINST THE OTHER PARTY WITH RESPECT TO SUCH THIRD-PARTY PRODUCTS AND SERVICES.

 

13)    TERM & TERMINATION

13.1. This Master Agreement shall continue in effect unless otherwise terminated in accordance with this section.

13.2. The initial term of each Purchased Services and/or Addova Offering shall be as specified in the applicable Schedule. Subscriptions and/or Addova Offering will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other written notice of non-renewal at least sixty (60) days before the end of the relevant term. The per-unit pricing during any renewal term will increase. Quantities licensed cannot be decreased during the relevant subscription term. Fees are due for the licensed quantity, including that added after Your original purchase, and are not refundable even if You are not fully using all named users, agents or other licenses. Except as expressly provided in the applicable Schedule, renewal of promotional pricing will increase at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which the volume for any Addova Offering has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.

13.3. This Master Agreement and/or applicable Addendum(s) and/or the applicable Schedule may be terminated by either Party (a) upon a material breach by the other Party, provided that, in each instance of a claimed breach: (i) the non-breaching Party notifies the breaching Party in writing of such breach; and (ii) the breaching Party fails to either cure such breach within thirty (30) days (or such other period as mutually agreed by the Parties) from receipt of such notice; or (b) upon insolvency of the other Party, if permitted by law.

13.4. Termination does not release either Party from any liability which, at the time of such termination, had already accrued to the other Party or which is attributable to a period prior to such termination, nor preclude either Party from pursuing any rights or remedies it may have under law or in equity with respect to any breach of this Master Agreement or the Agreement. Excepting for termination based on Addova’s uncured material breach, all fees are non-cancellable and non-refundable unless a pro-rated refund applies as provided in the applicable Addendum. In the event of a termination by Addova for an uncured material breach by Client, all fees shall immediately become due and payable.

13.5. Addova shall not be liable to Client or any third party for any compensation, reimbursement, losses, expenses, costs or damages arising from or related to, directly or indirectly, the termination of this Agreement for any reason. This waiver of liability shall include, but shall not be limited to, the loss of actual or anticipated profits, anticipated or actual sales, and of expenditures, investments, or commitments in connection with Client’s or any third party’s goodwill or business.

 

14)    DISPUTE RESOLUTION

14.1. Any dispute, controversy or claim arising out of the Agreement (a "Dispute") shall be resolved as provided in this section. Prior to the initiation of formal dispute resolution procedures, the Parties shall first meet in an effort to resolve the Dispute. If Client and Addova are unable to resolve the Dispute within thirty (30) days, then each of Addova and Client will appoint one (1) senior executive who is not involved on a day-to-day basis with the subject matter of the Agreement to negotiate a resolution to the Dispute.

14.2. Formal proceedings for the resolution of a Dispute may not be commenced until the earlier of: (i) the good faith determination by the appointed senior executives that resolution of the Dispute does not appear likely; or (ii) thirty (30) days following the date that the Dispute was first referred to the appointed senior executives. The provisions of paragraphs (i) and (ii) will not be construed to prevent a Party from instituting formal proceedings to the extent necessary to avoid the expiration of any applicable limitation period or to pursue equitable rights or injunctive remedies deemed reasonable necessary to protect its interests.

 

15)    GENERAL TERMS

15.1. Amendments. The terms of the Agreement may only be amended by mutual written agreement of the Parties.

15.2. Force Majeure. Except for payment obligations and Confidentiality obligations, neither Party will be liable for any action taken, or any failure to take any action required to be taken, as a result of circumstances beyond a Party’s control, including, without limitation, attacks by third parties, acts of terror, epidemic, pandemic, disease, failure from Internet Service Provider, Non-Addova Application, war, civil unrest or commotion, act of God including, but not limited to, earthquakes, epidemics, fires, floods or weather, strike or other stoppage (whether partial or total) of labor, any law, decree, regulation or order of any government or governmental body (including any court or tribunal) power failure, telecommunications interruption, the failure or closure of a financial institution, computer malfunctions, acts of God or any other failure, interruption or error not directly caused, or reasonably anticipated, by Addova.

15.3. Order of Precedence. Any conflict or inconsistency among or between the terms and conditions of the documents comprising the Agreement shall be resolved according to the following order of precedence, from the document with the greatest control to the least: (1) the Schedule; (2) the relevant Addendum; (3) this Master Agreement. Notwithstanding this Order of Precedence, a Client issued purchase order shall have no force or effect whatsoever and shall not modify the terms of the documents indicated herein.

15.4. Independent Contractors. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.

15.5. Client Data. Client represents and warrants that (i) it has the right, including consent where required, to lawfully transfer to Addova all Client Data and any other data or information related to Client’s access or use of an Addova Offering, (ii) its use of the Addova Offerings does and at all times will comply with applicable law, including, but not limited to, the European Union General Data Protection Regulation; (iii) it is responsible and liable for all activities that occur in user accounts, and (iv) it shall not misuse any Addova Offering by sending spam or otherwise duplicative or unsolicited messages or store infringing, obscene, threatening, or otherwise unlawful material or material that is harmful to children or violates third party privacy rights.

15.6. Assignment. The Agreement may not be assigned by Client without the prior written consent of Addova, such consent not to be unreasonably withheld.

15.7. Attorneys' Fees. If Addova commences any action or proceeding against Client to enforce the terms of this Agreement, Addova shall be entitled to an award against Client for all reasonable attorneys' fees, costs and expenses incurred by Addova in connection with such action or proceeding (including any mediation or arbitration, and at all levels of trial and appeal), and in connection with the enforcement of any judgment or order thereby obtained.

15.8. Drafter. This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the party drafting this Agreement in construing or interpreting the provisions hereof.

15.9. CLASS ACTION WAIVER. YOU AGREE THAT ANY CLAIM YOU MAY HAVE AGAINST ADDOVA, INCLUDING ADDOVA’S PAST OR PRESENT EMPLOYEES OR AGENTS, SHALL BE BROUGHT INDIVIDUALLY AND YOU SHALL NOT JOIN SUCH CLAIM WITH CLAIMS OF ANY OTHER PERSON OR ENTITY OR BRING, JOIN OR PARTICIPATE IN A CLASS ACTION AGAINST ADDOVA.

15.10. Import Export. Client acknowledges that the Addova Offering(s) is subject to control under European and U.S. law, including the Export Administration Regulations and agrees to comply with all applicable import and export laws and regulations. Client agrees that the Addova Offering(s) will not be exported, re-exported or transferred in violation of U.S. law or used for any purpose connected with chemical, biological or nuclear weapons or missile applications, nor be transferred or resold, if Client has knowledge or reason to know that the Addova Offerings are intended or likely to be used for such purpose.

15.11. Audit. Addova reserves the right, with thirty (30) days’ notice to the Client, to conduct an audit remotely or onsite of Client and/or its Affiliates’ facilities to verify Client’s compliance with the terms of the Agreement. Addova agrees that such audit shall be conducted during regular business hours at Client's offices and Addova shall endeavor to conduct such audit so as not to interfere unreasonably with Client's activities. Addova may use a mutually agreed upon independent third party to conduct the audit subject to terms of non-disclosure, if required by Client. Unless supported by reasonable suspicion of a deviation from the terms of the Agreement audits shall be no more frequently than once per calendar year.

15.12. Non-Hire. Client agrees that during the term of this Agreement, and for a period of twelve (12) months after termination of this Agreement, Client will not solicit for hire, either directly or indirectly, any employee to leave the employment of Addova and its affiliated companies or to hire/retain such person(s). Client agrees that these provisions are necessary and reasonable to protect the legitimate business interests that Addova and its affiliated companies have in protecting substantial investments in such employees.

15.13. Interference and Competition. Client shall not, directly or indirectly, during the term of this Agreement: (i) induce or influence any employee of Addova or any other person or entity to terminate their relationship with Addova; or (ii) use an Addova Offering to produce a product or service that competes with the Addova Offering.

15.14. Announcements. Client grants Addova a royalty-free, limited, nontransferable (except in connection with an assignment of this Agreement), nonexclusive license during the term of this Agreement to use and display Client’s logos and trademarks in customer lists, advertising materials, trade show materials and other literature identifying Addova’s customers. Addova may issue a press release regarding the transaction with Client.

15.15. Counterparts. This Master Agreement, any Addendum and any Schedule as applicable may be signed in any number of counterparts and each part shall be considered part of the whole and valid, legally binding document.

15.16. Notice. All notices hereunder shall be delivered to the other Party identified in the Agreement either personally, US Postal Service, via certified mail or overnight courier. If delivered personally, notice shall be deemed effective when delivered; if delivered via US Postal Service notice shall be deemed effective the second business day after mailing, and if delivered via certified mail or overnight courier, notice shall be deemed effective upon confirmation of delivery.

15.17. Headings. The section headings used herein are for information purposes only and shall not affect the interpretation of any provision of this Agreement.

15.18. Validity. In the event any term or provision of the Agreement shall be held to be invalid, the same shall not affect in any respect whatsoever the validity of the remainder of the Agreement.

15.19. Third Parties. There are no third-party beneficiaries under this Agreement.

15.20. Governing Law and Jurisdiction. Client is contracting with: Addova, Inc., a Georgia corporation. The governing law is: Georgia and controlling United States Federal Law. The courts having exclusive jurisdiction are: DeKalb County, Georgia, U.S.A.

15.21. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.

15.22. Survival. Sections pertaining to Confidentiality, Title, Limitation of Liability and Termination shall survive termination of this Master Agreement.

15.23. Entire Agreement. The Agreement and all documents incorporated by reference therein shall comprise the entire agreement as pertaining to the subject matter thereof and all other prior representations, proposals, and other such information exchanged by the Parties concerning the subject matter is superseded in their entirety by the Agreement.