CUSTOMER AGREEMENT

CLOUDCOREO CUSTOMER AGREEMENT (23 Nov 2016)

1. ACCEPTANCE OF CLOUDCOREO CUSTOMER AGREEMENT AND AUTHORITY TO ACT FOR CUSTOMER.

a. Capitalized terms in this CloudCoreo Customer Agreement are either defined in Section 2 below or by explanation within the Agreement followed by the capitalized term set out in parentheses, with the following provided in this clause only as an example of a parenthetical definition (a “Parenthetical Definition”).

b. THIS CUSTOMER AGREEMENT PROVIDES THE GENERAL LEGAL TERMS AND CONDITIONS APPLICABLE BETWEEN CLOUDCOREO AND THE CUSTOMER FOR CUSTOMER’S USE OF THE CLOUDCOREO SOFTWARE AND OTHER SERVICES SPECIFIED IN A PARTICULAR CUSTOMER ORDER. THE THEN-CURRENT VERSION OF THE CUSTOMER AGREEMENT IS INCORPORATED BY REFERENCE INTO THE CUSTOMER ORDER THAT ANY CUSTOMER ENTERS INTO WITH CLOUDCOREO, AND ALSO INTO ANY PRIOR UNEXPIRED AND UNTERMINATED CUSTOMER ORDERS ENTERED INTO WITH CLOUDCOREO, AND IS THEN A PART OF, AND TOGETHER WITH EACH APPLICABLE CUSTOMER ORDER, FORMS THE ENTIRE LEGAL AGREEMENT BETWEEN CLOUDCOREO AND CUSTOMER FOR USE OF THE CLOUDCOREO SOFTWARE AND OTHER SERVICES SET FORTH IN EACH SUCH CUSTOMER ORDER. CUSTOMER ORDERS MAY BE ENTERED INTO BETWEEN CUSTOMER AND CLOUDCOREO IN ONE OR A COMBINATION OF BOTH OF THE FOLLOWING TWO METHODS: (i.) BY EXECUTING AN ON-LINE CUSTOMER ORDER PRESENTED TO THE CUSTOMER BY THE CLOUDCOREO WEBSITE (the “SITE”) THAT REQUIRES AN AUTHORIZED INDIVIDUAL ACTING ON BEHALF OF THE CUSTOMER TO CLICK “I ACCEPT,” OR “I AGREE,” OR PROVIDE ANOTHER SIMILAR ON-LINE EXPRESSION OF CUSTOMER’S AGREEMENT TO BE BOUND UNDER THE APPLICABLE ORDER FOR THE SPECIFIED CLOUDCOREO SOFTWARE AND OTHER SERVICES, OR (ii.) BY EXECUTING A SEPARATE CUSTOMER ORDER DOCUMENT MANUALLY USING LEGALLY ENFORCEABLE DIGITAL SIGNTURES (e.g., DOCUSIGN) OR PEN AND INK.

c. BY EXECUTING A CUSTOMER ORDER, THE INDIVIDUAL PERSON CLICKING “I ACCEPT” OR “I AGREE” AND THE ORGANIZATION, ENTITY OR OTHER PERSONS ON WHOSE BEHALF THE INDIVIDUAL PERSON IS ACTING BOTH AGREE TO BE LEGALLY BOUND TO THE FOLLOWING: (i) THAT THE INDIVIDUAL PERSON HAS THE NECESSARY LEGAL AUTHORITY TO BIND ANY OTHER PERSONS, LEGAL ENTITIES, OR ANY ORGANIZATIONS COMPOSED OF PERSONS, LEGAL ENTITIES OR BOTH, AS THE NAMED “CUSTOMER” AND ON WHOSE BEHALF THE INDIVIDUAL PERSON IS EXECUTING THE CUSTOMER ORDER, AND (ii) THE CUSTOMER ON WHOSE BEHALF THE INDIVIDUAL IS EXECUTING THE CUSTOMER ORDER AGREES TO BE AND IS LEGALLY BOUND BY ALL OF THE OBLIGATIONS, CONDITIONS, RESTRICTIONS AND OTHER TERMS SET FORTH IN THE CUSTOMER AGREEMENT AND CUSTOMER ORDER INTO WHICH THE CUSTOMER AGREEMENT IS INCORPORATED BY REFERENCE.

2. DEFINITIONS.

“Authorized User” means one specific individual employee of Customer (as identified by a specific user identification) who is authorized to log on, or otherwise be connected, to the CloudCoreo Software under an applicable Customer Order. Customer shall ensure that only one specific user identification is assigned to each individual Authorized User and that no more than one Authorized User uses each such user identification. The maximum number of Authorized Users is set forth on the applicable Customer Order. For the avoidance of doubt, an Authorized User’s right may be reassigned and transferred to a different Authorized User if the original Authorized User terminates employment with Customer or is permanently reassigned either to a different organization within Customer or to different responsibilities and in either case will no longer use the CloudCoreo Software.

“CloudCoreo” means CloudCoreo, Inc., a Delaware corporation.

“CloudCoreo Open Source Components” means certain software components included in or used in conjunction with the CloudCoreo Software by Customer in or with source code under this Agreement that can be modified by the Customer and other users, including Open Composites (with the “Default Panel”), the CloudCoreo Software Command Line Interface (“CLI”), and the CloudCoreo Software Agent. Section 26 of this Customer Agreement provides for what terms govern in the event of any conflict between terms of this Customer Agreement and the terms of any open source software license agreement that applies to CloudCoreo Open Source Components.

“CloudCoreo Software” means the software CloudCoreo makes available to Customer for subscription use through the Site that is specifically referred to on the applicable Customer Order, including any updates, libraries, databases, plug-ins, messaging services authentication sub-functions, certificate management, and environments CloudCoreo provides to Customer. CloudCoreo Software also includes the CloudCoreo Software Agent, the CLI any Proprietary CloudCoreo Composites.

“CloudCoreo Software Agent” means a particular component of the CloudCoreo Software that is installed on the Customer’s cloud server infrastructure and that communicates and interacts with the CloudCoreo Software.

“CloudCoreo Software and Other Services” means any CloudCoreo Software provided to customers as a subscription service, any CloudCoreo Open Source Components and any Other Services that CloudCoreo makes available or provides to any Customers directly or indirectly through the Site that require both Customer registration and execution of a Customer Order.

“Composite” means a layered and inheritable cloud reference design for use with the CloudCoreo Software engine that simplifies reusing, extending, combining, and distributing changes to any cloud infrastructure design. A Composite can specify a single micro-service, a group of services, a complex application, or entire data center definition, and include a true software based inheritance approach that improves the fundamental building blocks for cloud infrastructure lifecycle management. A Composite dynamically specifies the desired current and end states of the Customer’s cloud deployment, including all required resources and service dependencies, including networking, security, storage, compute as well as container and serverless functions offered by a cloud provider. A Composite also includes “Chains” that provide an event program allowing the Customer to search, filter and write conditions on any data set, as well as “Functions” that enable the Customer to create smart logic within a Composite creating a reference design that can take dynamic actions.  Finally, a Composite also includes “Panels” that enable the Customer to define custom UIs and operational tasks, and how resources are represented in the CloudCoreo Software UI. An “Open Composite” is provided or approved for use by CloudCoreo or a third party in source code that the Customer may modify in accordance with an applicable open source software license and this Customer Agreement. A “Proprietary CloudCoreo Composite” is provided to the Customer by CloudCoreo on a limited basis and subject to restrictions on use, modification and distribution.

“Confidential Information” means any information that is proprietary or confidential to a party to this Customer Agreement or that the party is obligated to keep confidential (e.g., pursuant to a contractual or other obligation owing to a third party) and that at or near the time when the party discloses such information (the “Discloser”) to the receiving party (the “Recipient”), the Discloser either designates the information in writing as “Confidential” or “Proprietary” or, based on the circumstance of the information, or the disclosure or both, the Recipient should reasonably know the information is confidential and proprietary to the Discloser. Confidential Information may be of a technical, business or other nature, including, but not limited to, information which relates to the Discloser’s technology, research, development, solutions, products, services, pricing, customers, subscribers, employees, contractors, marketing plans, finances, contracts, legal affairs, or business affairs. However, Confidential Information does not include any information that: (a) was known to the Recipient prior to receiving the same from the Discloser in connection with this Agreement, conditioned however on proof through documentary evidence existing prior to receiving the same Confidential Information from the Discloser; (b) is independently developed by the Recipient without reference to any Confidential Information of the Discloser; (c) is acquired by the Recipient from another source without restriction as to use or disclosure; (d) is Accumulated Knowledge; or (e) is or becomes part of the public domain through no fault or action of the Recipient.

“Customer” means any individual person or any other individual person, legal entity or other organization composed of people or legal entities or both on whose behalf an authorized individual person enters into a Customer Order.

“Customer Agreement” means this agreement, including all of the rights, obligations, conditions and restrictions described herein relating to any Customer’s use of the Site Materials and the specific CloudCoreo Software and Other Services set forth in the applicable Customer Order into which this Customer Agreement is incorporated by reference, as well Customer Content provided by any such Customer under this Customer Agreement.

“Customer Content” means any information, material and other content that Authorized Users upload, post or transmit through the Site in relation to using CloudCoreo Software and Other Services on Customer’s behalf under a Customer Order, including but not limited to any software, Composites, messages, text, files, images, photos, video, sounds, profiles, works of authorship, or any other materials. Although Customer Content includes any Composites that a Customer creates or modifies and then redistributes (“Customer Composites”), Section 26 of this Customer Agreement provides for what terms govern in the event of a conflict between terms of this Customer Agreement and the terms of any open source software license agreement that applies to Customer Composites.

“Customer Order” means a contractual document presented to any Customer that when accepted by on-line “click-through” or executed by the Customer evidences the entire agreement and transaction terms between the Customer and CloudCoreo for any CloudCoreo Software and Other Services set forth in the Customer Order, including but not limited to, the scope of the Customer’s rights to use the specific CloudCoreo Software and Services, the number of Authorized Users permitted by CloudCoreo to use the CloudCoreo Software and Services on behalf of Customer, the duration of those rights, any fees charged by CloudCoreo for any such services, and this Customer Agreement as incorporated by reference into and made a part of the Customer Order.

“Customer Order Term” means the limited duration of a Customer Order, including any renewal terms, that are provided in each such Customer Order.

“Documentation” means any on-line help files, instruction manuals, operating instructions and user manuals created and provided by or for CloudCoreo that describe the use of the CloudCoreo Software and that are available to Customer through the Site.

“Feedback” means any ideas, suggestions, or comments that Customer provides to CloudCoreo related to the Site, Site Materials, CloudCoreo Software and Other Services, or any other CloudCoreo technologies, products, service or business activities (in beta, pre-release or released versions).

“Malware” means any viruses, trojan horses, worms, logic bombs or any other harmful and malicious software code or routine.

“Marks” mean CloudCoreo®, cloudcoreo.com, and any other graphics, logos, page headers, buttons, icons, scripts, and service names are trademarks, registered trademarks, or trade dress of CloudCoreo or its affiliates or of other third parties (excluding Customer) in the U.S. and/or other countries.

“Other Services” means, collectively, Professional Services, Training Services as well as any Support Services sold separately from the subscription service for the CloudCoreo Software.

“Other User Content” means any information, material and other content that a user of the Site, other than Customer (including Customer’s Authorized Users), uploads, posts or transmits through the Site, including but not limited to any software, Composites, messages, text, files, images, photos, video, sounds, profiles, works of authorship, or any other materials, but excluding any Customer Content or Site Content.

“Professional Services” means any services performed by CloudCoreo for Customer under a Customer Order to configure the CloudCoreo Software a certain way for Customer’s use.

“Site” means the website for CloudCoreo, Inc., located at www.cloudcoreo.com, including all subpages, other websites under the “cloudcoreo.com” domain, and all websites under any other domains that, based on available information, Customer knows or reasonably should know are controlled by CloudCoreo.

“Site Content” means any content that is built into or provided by CloudCoreo on the Site, including but not limited to, all the visual interfaces, graphics, design, systems, methods, information, software, other computer code, services, stylized appearance, data, reports, text, images, sounds, video, and any compilation, organization and structure of the foregoing, but excluding any Customer Content or Other User Content.

“Site Materials” means the Site, any Site Content, any other software other than the CloudCoreo Software that is related to CloudCoreo’s business, and any Other User Content, Third Party Software or other third party materials uploaded or posted on or through the Site and the information technology system infrastructure on which the Site operates or depends, but excluding any Customer Content.

“Support Services” means any software support services that CloudCoreo sells separately from the subscriptions to use the CloudCoreo Software.

“Training Services” means the training services described in the applicable Customer Order.

3. CUSTOMER ORDER REQUIREMENTS
The Customer Agreement further expressly conditions entering into a Customer Order on the following:

a. If the Customer is an individual, the Customer is 18 years or older, and if the Customer is an organization or legal entity, the individual who is representing the Customer in completing the Customer Order is 18 years or older;
b. All information submitted in the Customer Order is truthful and accurate;
c. Customer will update the information submitted to CloudCoreo in the Customer Order as necessary to make it truthful and accurate;
d. Customer will not use the CloudCoreo Software and Other Services in a manner that violates applicable laws or regulations;
e. Customer will secure and restrict use of any account and password for access to any CloudCoreo Software and Other Services to avoid any unauthorized access and use of the CloudCoreo Software and Other Services by others, and Customer is solely and absolutely responsible and liable for any harm or damages that result from its failure to do so; and
f. Customer is responsible for, and liable for any harm or damages that result from any activity that occurs under Customer’s Account (including any activity on the Site by Authorized Users or others who have user accounts that Customer authorizes because of Customer’s account).

4. SCOPE OF CLOUDCOREO SOFTWARE SUBSCRIPTION USE AND DOCUMENTATION LICENSE
During the Order Term and subject to Customer’s other obligations, restrictions and conditions set forth in the applicable Customer Order that incorporates by reference this Customer Agreement, CloudCoreo provides the following rights to Customer:
a. CloudCoreo authorizes Customer on a nontransferable and nonexclusive basis to have the number of Authorized Users authorized in the applicable Customer Order access and use the CloudCoreo Software from CloudCoreo-controlled cloud infrastructure solely for Customer’s internal business operations and use; and
b. CloudCoreo grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicensable license to make a reasonable number of copies of and to have Customer’s Authorized Users use such copies of the Documentation for Customer’s internal business operations and use.
c. If any applicable open source software license governs Customer’s the use of any CloudCoreo Open Source Components, then Section 26 of this Customer Agreement provides for any conflicts between the terms of this Customer Agreement and the terms of any such open source software license agreement.

5. RESTRICTIONS ON USE OF CLOUDCOREO SOFTWARE
The Customer Agreement sets forth the entirety of Customer’s rights to access, use, or otherwise deal with the CloudCoreo Software and Documentation. Without limiting the generality of the foregoing, the Customer Agreement does not include the right to, and Customer will not directly or indirectly do any of the following:
a. modify or create any derivative work without the written authorization of CloudCoreo based on any CloudCoreo Software or Documentation, but excluding any CloudCoreo Open Source Components;
b. transfer, sell, rent, lease, commercialize, lend, distribute, grant any sublicense or other rights to any CloudCoreo Software, CloudCoreo Software Agent or Documentation to any third party without the written authorization of CloudCoreo;
c. reverse engineer, disassemble or decompile any of the CloudCoreo Software (except to the extent such restrictions are prohibited by law) or attempt to discover or recreate the source code to any CloudCoreo Software, but excluding any CloudCoreo Open Source Components;
d. provide any information to third parties about performance or benchmarking for the CloudCoreo Software;
e. engage in or authorize any use of the CloudCoreo Software or CloudCoreo Software Agent that is unlawful or breaches the terms and conditions of the applicable Customer Order and this Customer Agreement, or
f. remove, obscure, or alter any notice of copyright, trademark, trade secret, or other proprietary right related to the Server Software, CloudCoreo Software Agent or Documentation.

6. CUSTOMER ORDER INFORMATION, PRIVACY, AND SECURITY

a. CloudCoreo requires Customer to provide certain registration and other information in the process of entering into a Customer Order. Because CloudCoreo will rely on the information Customer provides, it is critical that the information is true and accurate, and that Customer maintains the accuracy and truthfulness of the information during the Order Term.

b. Customer agrees that all information Customer provides to CloudCoreo when entering into the applicable Customer Order or during the performance of such Customer Order, is governed by CloudCoreo’s Privacy Policy, and Customer consents to CloudCoreo’s use of information Customer provides in accordance with CloudCoreo’s then-current Privacy Policy.

c. If the Site or any person acting on behalf of CloudCoreo provides Customer user authentication credentials (user name, password, etc.) for creation of a user account and secure access to the CloudCoreo Software, including but not limited to any Authorized Users, Customer agrees to keep that account access information personal to Customer and its Authorized Users, to protect the security and confidentiality of that account access information, and not to disclose or provide that account access information and any access to the CloudCoreo Software or any other restricted pages of the Site to any third party. As an example only, and not limiting Customer’s obligations in this paragraph, Customer agrees to use care to insure that its Authorized Users completely log out of user accounts when finished using the CloudCoreo Software or any other secure and restricted pages on the Site, and to exercise care and caution to appropriately protect Authorized User account access information in less secure and public environments, including but not limited to logging onto an Authorized User account in public places, and using shared computing resources and Wi-Fi networks available to others, including the general public. Customer agrees that it has or will enter into agreements with its Authorized Users that are at least as protective of CloudCoreo, CloudCoreo Software and Other Services and any Site Materials as this Customer Agreement.

d. Customer agrees that CloudCoreo has the right in its sole and absolute discretion to restrict Authorized User access to and use of the CloudCoreo Software and Other Services or any Site Materials in which access is secure and restricted, including but not limited to disabling Authorized User authentication and account access privileges to the CloudCoreo Software and Other Services or secure and restricted pages of any Site Materials. Customer agrees to notify CloudCoreo immediately of any unauthorized access that Customer (including but not limited to any Authorized Users) know or should reasonably know about, to either the CloudCoreo Software and Other Services, the secure and restricted pages of any Site Content, or Customer’s account access information.

7. PROPRIETARY RIGHTS AND RESTRICTIONS.

a. As between Customer and CloudCoreo, Customer agrees that CloudCoreo is the legal owner of and has all right, title and interest in and to any CloudCoreo Software and Other Services or any Site Materials. CloudCoreo Software and Other Services or any Site Materials are protected by any combination of applicable copyright, trade dress, patent, trade secret, and trademark laws (and any international conventions related to the same). Without limiting the preceding in any way, all trademarks, service marks, and trade names displayed in the CloudCoreo Software and Other Services or any Site Materials (the “Marks”) are owned by CloudCoreo or third parties who have authorized CloudCoreo to display their Marks. Customer is not permitted to use the Marks without written authorization of an authorized representative of CloudCoreo or such third party. Please carefully read CloudCoreo’s Trademark Policy at https://assets.cloudcoreo.com/tm-policy for more specific guidelines about the Marks.

b. Except as expressly set forth in this Customer Agreement, use of the any CloudCoreo Software and Other Services or any Site Materials does not grant to Customer ownership of or any other rights with respect to any CloudCoreo Software and Other Services or any Site Materials, whether by implication, estoppel, or otherwise, and CloudCoreo reserves all rights to the CloudCoreo Software and Other Services or any Site Materials.

8. CUSTOMER AGREEMENT UPDATES

CloudCoreo may revise and update this Customer Agreement at any time for any reason in its sole and absolute discretion. Updates and revisions to the Customer Agreement are effective immediately on posting to the Site, and CloudCoreo will provide notice on the Site that the Customer Agreement has been updated. The Customer Agreement also will indicate at the beginning (top of the page) the date the current Customer Agreement was last revised. It is Customer’s responsibility to check the Customer Agreement for changes.

CUSTOMER AGREES THAT THE MOST RECENT VERSION OF THIS CUSTOMER AGREEMENT THAT CUSTOMER ACCEPTS BY ENTERING INTO A CUSTOMER ORDER WILL APPLY TO CUSTOMER FOR THE REMAINING DURATION OF ANY AND ALL UNEXPIRED AND ACTIVE CUSTOMER ORDERS, AND ALL SUCH UNEXPIRED AND ACTIVE CUSTOMER ORDERS WILL THEREFORE BE AMENDED TO INCORPORATE BY REFERENCE THE MOST CURRENT AND UPDATED VERSION OF THE CUSTOMER AGREEMENT.

9. PROHIBITED USES.

a. Customer’s use of any CloudCoreo Software and Other Services or any Site Materials must be legal under any applicable laws and also comply with this Customer Agreement. Customer will not, nor will it enable a third party in any way to, use or try to use the CloudCoreo Software and Other Services or any Site Materials for any illegal (including criminal) purpose under any applicable laws, including but not limited to the following:

(i) violating data, privacy or export control laws;

(ii) infringing, misappropriating or violating any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;

(iii) trying to exploit or harm, or exploiting or harming, minors in any way, including without limitation, by exposing them to inappropriate content, or requesting or acquiring their personally identifiable information;

(iv) transmitting or assisting in any manner others to transmit any solicitations, advertising or promotional material like “junk mail”, “chain letters”, “spam” or the like;

(v) impersonating, trying to impersonate, or helping others to impersonate or try to impersonate CloudCoreo, a CloudCoreo employee or authorized representative, an authorized CloudCoreo user or any other person authorized to use any CloudCoreo Software and Other Services or any Site Materials (e.g., by using any of the e-mail addresses, user ID or password associated of any of the foregoing);

(vi) using the CloudCoreo Software and Other Services, CloudCoreo Software Agent, Documentation, or Site Materials, or posting or transmitting through the Site any Customer Content in any manner that violates in any way the rights of other persons or solicits, encourages or promotes illegal activities, including but not limited to activities that threaten, abuse in any way, harass, defame, libel, disparage, invade the privacy or publicity rights of other persons or that are vulgar, obscene, bigoted or hateful, profane, scandalous, obscene; or

(vii) engaging in any other conduct that restricts or inhibits any other person’s use or enjoyment of any CloudCoreo Software and Other Services or any Site Materials, or which, as determined by CloudCoreo in its sole and absolute discretion, may harm or expose to liability either CloudCoreo, its licensors and suppliers, or any other Customers or other users of the CloudCoreo Software and Other Services or any Site Materials.

b. Customer agrees that it will not by itself or by assisting others obtain or try to obtain unauthorized access to and use of the CloudCoreo Software and Other Services or any Site Materials, including but not limited to doing so in the following ways:

(i) circumventing any encryption or other security measures that the CloudCoreo Software and Other Services or any Site Materials used to manage and allow authorized access;

(ii) accessing or trying to access the CloudCoreo Software and Other Services or any Site Materials by any means other than through the interface(s) that CloudCoreo provides to Customer or other customers; or

(iii) using any automated technology or process (e.g., robot, crawler or other automated means) or manual process, obtain unauthorized access to the CloudCoreo Software and Other Services or any Site Materials for any purposes, including monitoring other user activity or accessing, using or copying without permission the CloudCoreo Software and Other Services or any Site Materials;

c. Customer also agrees not to, or not to assist others to, interfere with or disrupt in any manner the availability, integrity or performance of any CloudCoreo Software and Other Services or any Site Materials, including but not limited to doing so in the following ways:

(i) using any device, software, or other technology or process that interferes with the proper function of any CloudCoreo Software and Other Services or any Site Materials;

(ii) infecting any CloudCoreo Software and Other Services or any Site Materials with Malware;

(iii) using a denial-of-service attack or a distributed denial-of- service attack against the Site;

(iv) trying to gain or gaining unauthorized access to, interfering with, damaging or disrupting any parts of the information technology infrastructure, computers or databases on which any CloudCoreo Software and Other Services or any Site Materials are stored or depend for proper function; or

(v) trying or helping others to try to otherwise interfere with the proper function of any CloudCoreo Software and Other Services or any Site Materials.

CloudCoreo reserves the right to the fullest extent permitted by law to pursue prosecution of and seek damages from any person for illegally (including criminally) trying to intentionally harm or disrupt any CloudCoreo Software and Other Services or any Site Materials.

10. CUSTOMER CONTENT

a. While using the Site in compliance with this Customer Agreement, Customer may upload, post or transmit on or through the Site any Customer Content. Customer also may submit Feedback. Customer agrees that by uploading, posting or transmitting any of Customer Content or Feedback to CloudCoreo, including but not limited to on or through the Site, Customer has no expectation of, and CloudCoreo has no obligations to Customer for, confidentiality or privacy in any of Customer Content or Feedback.

b. Customer grants CloudCoreo a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish, perform Customer Content and any Feedback and to make, have made, sell, offer to sell, and import any products or materials that include or incorporate any Customer Content and Feedback in connection with CloudCoreo’s business, including but not limited to any CloudCoreo Software and Other Service or any Site Materials.

c. Customer understands that the operation of the Site, including Customer Content, may be unencrypted and involve transmission of Customer Content to CloudCoreo’s third party vendors and other partners to operate and maintain CloudCoreo’s business including but not limited to the Site. Accordingly, Customer acknowledges that CloudCoreo has no obligations or responsibilities whatsoever for adequate security, protection and backup of Customer Content, CloudCoreo will have no liability to Customer for any unauthorized access or use of any of Customer Content, or any corruption, deletion, destruction or loss of any of Customer Content. CloudCoreo has the right, but not the obligation, to monitor the Site and Customer Content. CloudCoreo may remove or disable any of Customer Content at any time and for any reasons, in CloudCoreo’s sole and absolute discretion.

d. Customer represents and warrant that (i) Customer owns and or has all rights necessary to upload, post or transmit any Customer Content or Feedback on or through the Site, and to grant any rights to CloudCoreo in any Customer Content or Feedback pursuant to this Customer Agreement; (ii) any Customer Content or Feedback is accurate and truthful; and (iii) uploading, posting, or transmitting any Customer Content or Feedback on or through the Site, and Customer’s granting the rights to CloudCoreo in any Customer Content or Feedback , pursuant to this Customer Agreement does not and will not infringe or violate any rights of, or cause injury to, any other person or entity.

e. Customer agrees that uploading, posting or transmitting any of Customer Content or Feedback on or through the Site, and Customer’s granting the rights to CloudCoreo in any Customer Content or Feedback, pursuant to this Customer Agreement will not result in any “Prohibited Use” under Section 9 of this Customer Agreement.

f. For the avoidance of any doubt, Section 26 of this Customer Agreement provides for any conflicts between the terms of this Customer Agreement and the terms of any open source software license agreement that applies to any Customer Composites.

11. OTHER THIRD PARTY WEBSITES

a. The Site may include links to other third party websites (“Other Websites”). CloudCoreo does not have any control over or responsibility for Other Websites, including but not limited to the quality of content included on or accessible from Other Websites (“Other Website Content”), and is not and will not in the future be responsible in any way for inspecting Other Websites or Other Website Content.

b. Customer assumes all risks of and responsibility for using any Other Websites or Other Website Content, including but not limited to complying with any other contractual obligations arising from Customer’s accessing or using any Other Websites or Other Website Content, and any risks to Customer, to CloudCoreo or other third parties of Customer transmitting any Malware from any Other Websites or Other Website Content.

12. THIRD PARTY SOFTWARE

Third Party Software. The CloudCoreo Software includes components under license from third parties, including open source licenses (the “Third Party Software”). Use of Third Party Software is subject to the terms of their accompanying licenses and then this Customer Agreement, provided that Section 26 of this Customer Agreement provides for any conflicts between the terms of this Customer Agreement and the terms of any open source software license agreement that applies to any Third Party Software. Please see https://assets.cloudcoreo.com/3rdpartysoftware/. CloudCoreo will work in good faith to address with the suppliers of the Third Party Software any errors or other issues with such Third Party Software.

13. PROTECTING CUSTOMER AND OTHERS’ INTELLECTUAL PROPERTY RIGHTS/DMCA

CloudCoreo respects intellectual property rights of others, and CloudCoreo obeys applicable copyright law by responding to notices of alleged infringement in accordance with The Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”). PLEASE REFER TO SECTION 1O OF THE CLOUD COREO WEBSITE TERMS OF USE (the “SITE AGREEMENT”), AS SUCH SECTION 1O OF THE SITE AGREEMENT IS INCORPORATED INTO AND MADE A PART OF THIS CUSTOMER AGREEMENT BY THIS REFERENCE, FOR CUSTOMER’S RIGHTS UNDER THIS CUSTOMER AGREEMENT WITH RESPECT TO REPORTING CLAIMS TO CLOUDCOREO THAT CUSTOMER’S OR A THIRD PARTY’S COPYRIGHT ARE INFRINGED PURSUANT TO THE DMCA.

14. PROFESSIONAL OR TRAINING SERVICES
a. Scope. During the Customer Order Term, CloudCoreo will provide to Customer either or both of Professional or Training Services as specified in the applicable Customer Order. Customer Orders for Professional or Training Services will include, without limitation, the following: (i)  detailed description of the applicable Professional or Training Services and of any deliverables to be created and provided to Customer as part of such Professional or Training Services; (ii)  the work schedule for such Professional or Training Services; (iii) any specifications, standards or other requirements applicable to such Professional or Training Services; (iv) identification of any items to be provided by Customer in connection with such Professional or Training Services; and (v) any additional terms, conditions or other provisions applicable to such Professional or Training Services.

b. Performance. CloudCoreo will use commercially reasonable efforts to perform the Professional or Training Services in substantially accordance with any specifications, standards, requirements and schedules set forth in the applicable Customer Order.

c. Customer Items. Customer will timely provide any equipment, software, materials, information and other items specified in the applicable Customer Order.

d. Changes. The Professional or Training Services may be changed from time to time as agreed by the parties in a supplement to the applicable Customer Order. If any such change causes an increase or decrease in the cost or time required to perform any Professional or Training Services, then the compensation and schedule will be equitably adjusted to accommodate the same.

e. Cancellation. The Customer may cancel or request a change that causes a material decrease in the level or quantity of Professional or Training Services with thirty (30) days prior written notice, unless otherwise set forth in a Customer Order. Upon such cancellation or decrease, Customer shall be responsible for paying all costs and cancellation charges incurred by CloudCoreo through the cancellation period in accordance with the original compensation schedule for such Professional or Training Services.

f. Review of Deliverables. Customer will promptly review any deliverables provided to Customer in connection with the Professional Services and immediately notify CloudCoreo of any defect, deficiency, error or nonconformity known to or discovered by Customer. Upon receipt of notice from Customer of any such defect, deficiency, error or nonconformity, CloudCoreo will use commercially reasonable efforts to correct or provide a reasonable workaround for the nonconforming deliverable. If CloudCoreo has not received notice from Customer of any such defect, deficiency, error or nonconformity within ten (10) days after providing the deliverable, Customer will be deemed to have accepted such deliverables. Customer will not reject the deliverables unless the deliverables substantially fail to conform to the specifications as set forth in the applicable Customer Order.

15. FEES FOR SOFTWARE AND OTHER SERVICES, PAYMENT TERMS AND TAXES

a. Software Subscription Amounts. Customer will pay CloudCoreo the CloudCoreo Software subscription fees and other amounts specified in the Customer Order. Payment obligations are non-cancelable, fees paid are non-refundable, except pursuant to a limited and exclusive remedy provided in this Customer Agreement. CloudCoreo Software subscription fees will be paid in advance in accordance with any different billing frequency stated in the applicable Customer Order.

b. Professional Services or Training Services Fees. For Professional Services or Training Services fees designated as “fixed fee”, CloudCoreo will invoice Customer upon execution of the applicable Customer Order. For Professional Services or Training Services fees not designated as fixed fee, CloudCoreo will invoice monthly in arrears based on actual hours worked during the preceding month. Unless the applicable Customer Order provides otherwise, Professional Services Fees and Training Services fees are non-cancelable less than thirty (30) days from delivery and fees paid are non-refundable, except pursuant to a limited and exclusive remedy provided in this Customer Agreement.

c. Other Costs and Expenses. Customer will reimburse CloudCoreo for any reasonable expenses incurred by CloudCoreo in the performance of the Services, including without limitation, travel and lodging expenses.

d. Invoices. All amounts payable under this Customer Agreement are denominated in United States dollars and Customer will pay all such amounts in lawful currency of the United States. Except as otherwise set forth on the applicable Customer Order, any invoices from CloudCoreo will be for fees as described herein, and Customer will pay each of CloudCoreo’s invoices within thirty (30) days after Customer receives the invoice at the address set forth on the Customer Order. Any amount not paid when due will bear interest at the rate of one and one half percent (1.5%) per month or the maximum rate permitted by applicable usury law, whichever is less, computed and compounded daily from the date due until the date paid. Further, in the event of any action by CloudCoreo to collect any amount not paid when due, Customer will pay or reimburse CloudCoreo’s costs of collection (including, without limitation, any attorneys’ fees and court costs).

e. Taxes. Unless otherwise specified in the applicable Customer Order, the price, fees and other amounts payable to CloudCoreo under this Agreement do not include any sales, use or other similar taxes assessed or imposed by any governmental authority. With regard to such amounts, Customer will pay or reimburse CloudCoreo for all such charges upon demand or provide certificates or other evidence of exemption. Neither party will be responsible for any taxes on the net income of the other party.

16. CONFIDENTIALITY

a. The Recipient will protect any Confidential Information of the Discloser that is in Recipient’s possession against any unauthorized use or disclosure to the same extent that the Recipient protects its own Confidential Information of a similar nature against unauthorized use or disclosure, but in no event will Recipient use less than reasonable care to protect such Confidential Information. The Recipient will use any Confidential Information of the Discloser solely for the purposes for which it is provided by the Discloser under the Customer Agreement, and disclose Confidential Information to its employees and contractors consistent with the purpose of this Customer Agreement, subject to obligations of confidentiality at least as protective as this Section 16. Recipient may disclose Confidential Information of the Discloser (i) that is compelled or required by applicable law (e.g., pursuant to applicable securities laws or legal process), provided that the Recipient uses reasonable efforts to give the Discloser reasonable advance written notice thereof (e.g., so as to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure); or (ii)  with the prior written consent of the Discloser. In the event of any breach or threatened breach by the Recipient of its obligations under this Section, the Discloser will be entitled to seek injunctive and other equitable relief to enforce such obligations.

b. CloudCoreo may reuse accumulated knowledge (the “Accumulated Knowledge”) without restriction and free and clear of any ownership claim by Customer. For purposes of the preceding sentence, “Accumulated Knowledge” means any ideas, techniques, processes and concepts relating to information technology, incidental information and other know-how that is retained in non-tangible form in the unaided memory, and that becomes part of the general knowledge, skill, expertise and experience, of any CloudCoreo employee or contractor in the ordinary course of employment or engagement by CloudCoreo to provide Professional Services to any Customer.

17. TERM AND TERMINATION
a. The Customer Agreement and the Customer Order in which it is incorporated into become effective on the date the Customer enters into the Customer Order, and continues in effect until the end of the Order Term, unless terminated earlier by either party for any of the following reasons:
if the other party ceases to do business, or otherwise terminates its business operations;
if the other party becomes insolvent or seeks protection under any bankruptcy, receivership, insolvency or comparable proceeding, or if any such proceeding is instituted against such party; or
if the other party breaches any material provision of the Customer Agreement and Customer Order other than an obligation to pay fees under Section 15 of this Customer Agreement and fails to fully cure such breach within thirty (30) days of written notice describing such breach; or
if the Customer breaches any obligation under the applicable Customer Order to pay any fees under Section 15 of this Customer Agreement and fails to fully cure such breach within ten (10) business days of written notice from CloudCoreo describing such breach;

b. CloudCoreo reserves the right, without notice and in its sole discretion, to terminate Customer’s authorization to use the any Site Materials, and to block or prevent Customer’s future access to and use any Site Materials.

c. Upon termination of the applicable Customer Order, regardless of the cause, the authorization granted under this Agreement to access and use any of the CloudCoreo Software or Other Services under the applicable Customer Order is immediately revoked. Within ten (10) business days after the termination of the applicable Customer Order, Customer will destroy any copies of the CloudCoreo Software Agent and Documentation in Customer’s possession and certify in writing that Customer has destroyed the same. In the event of termination under any applicable Customer Order, Customer will remain obligated for any payments due as of the date of termination. Termination of the Customer Order shall be in addition to, and not in lieu of, any other remedies available to either party.

d. Any and all liabilities accrued before the effective date of the termination will survive. The obligations and restrictions in the applicable Customer Order and this Customer Agreement, that, by their terms, require performance after the termination or expiration of the applicable Customer Order and this Customer Agreement, or have application to events that may occur after the termination or expiration of the applicable Customer Order and this Customer Agreement, will survive the termination or expiration of the applicable Customer Order and this Customer Agreement, including but not limited any obligations concerning CloudCoreo’s proprietary rights, indemnity, disclaimers of warranty, limitation of liability, and governing law.

18. WARRANTIES.
EXCLUDING ANY “BETA” OR OTHER “PRE-RELEASE” CLOUDCOREO SOFTWARE AND OTHER SERVICES, CLOUDCOREO PROVIDES THE FOLLOWING WARRANTIES AND LIMITED AND EXCLUSIVE REMEDIES.

a. CloudCoreo Software Subscription Services Warranty. CloudCoreo warrants to Customer that during the Term of the Order the CloudCoreo Software will function substantially in accordance with the applicable Documentation. CloudCoreo will use commercially reasonable efforts to correct or provide a reasonable workaround for any CloudCoreo Software service Customer subscribes to that does not comply with the warranty set forth in the preceding sentence, provided that Customer gives CloudCoreo written notice of the nonconformity within five (5) business days after Customer discovers or should reasonably discover the same.

b. LIMITED AND EXCLUSIVE REMEDY. If after a commercially reasonable period not less than thirty (30) days following receipt of Customer’s written notice of a warranty claim for the CloudCoreo Software, CloudCoreo using commercially reasonable efforts is unable to correct the non-conforming component of the CloudCoreo Software or provide a reasonable workaround, then Customer’s sole and exclusive remedy will be to terminate the applicable Customer Order, and CloudCoreo will refund to Customer the prepaid and unused CloudCoreo Software subscription fees Customer paid, as full satisfaction of the foregoing warranty obligation.

Exclusions. CloudCoreo’s warranties under this Section 18 do not apply to any warranty noncompliance resulting from any: (i) use not in accordance with the applicable Customer Order, this Customer Agreement or the Documentation; or (ii) modification, damage, misuse or other action performed on the CloudCoreo Software by or on behalf of Customer or by any third party. CloudCoreo does not warrant that any CloudCoreo Software or Documentation is free from bugs, errors, defects or deficiencies.

c. Professional Services Warranty. Performance. CloudCoreo warrants to Customer that (i) CloudCoreo will perform the Professional Services in a professional and workmanlike manner and (ii) the Professional Services and any deliverables will comply in all material respects with the written specifications and other requirements set forth in the Customer Order. CloudCoreo will use commercially reasonable efforts to correct any Professional Services deliverable that does not substantially comply with the warranty set forth in the preceding sentence, provided that Customer gives CloudCoreo written notice of the noncompliance within five (5) business days after Customer discovers or should reasonably discover the same.

d. LIMITED AND EXCLUSIVE REMEDY. If after a commercially reasonable period not less than thirty (30) days following receipt of Customer’s written notice of a warranty claim with a Professional Services deliverable, CloudCoreo is unable using commercially reasonable efforts to correct the nonconforming portion of the Professional Services deliverable, or provide a reasonable workaround, then Customer’s sole and exclusive remedy will be for CloudCoreo to refund to Customer the fees paid for the non-conforming portion of the Professional Services deliverable as full satisfaction of the foregoing warranty obligation.

e. Training Services Warranty and Limited and Exclusive Remedy. CloudCoreo warrants to Customer that CloudCoreo will perform the Training Services in a professional and workmanlike manner. If CloudCoreo fails to perform the warranty in the preceding Sentence, at CloudCoreo’s expense, CloudCoreo will use commercially reasonable efforts to re-perform the non-conforming Training Services. If re-performance of the Training Services does not correct the warranty non-conformance, then Customer’s sole and exclusive remedy will be for CloudCoreo to refund to Customer the fees paid for the non-conforming portion of the Training Services as full satisfaction of the foregoing warranty obligation

19. DISCLAIMERS OF REPRESENTATIONS AND WARRANTIES

a. EXCEPT AS AND ONLY TO THE EXTENT EXPRESSLY WARRANTED IN SECTION 18 OF THIS CUSTOMER AGREEMENT, ANY CLOUDCOREO SOFTWARE AND OTHER SERVICES OR ANY SITE MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY OTHER WARRANTIES OF ANY KIND, AND CLOUDCOREO EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OF TITLE/NON-INFRINGEMENT, AND ANY REPRESENTATIONS OR WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. CUSTOMER DOWNLOADS, OBTAINS AND USES ANY CLOUDCOREO SOFTWARE AND OTHER SERVICES OR ANY SITE MATERIALS FROM CLOUDCOREO OR THE SITE AT CUSTOMER’S OWN RISK AND CUSTOMER IS SOLELY REPONSIBLE FOR DAMAGE TO CUSTOMER’S COMPUTER SYSTEMS OR LOSS OF DATA THAT RESULTS FROM ANY USE OR DOWNLOAD OF ANY CLOUDCOREO SOFTWARE AND OTHER SERVICES OR ANY SITE MATERIALS. CUSTOMER AGREES THAT CLOUDCOREO DOES NOT WARRANT THAT CUSTOMER’S ACCESS OR USE OR BOTH OF ANY CLOUDCOREO SOFTWARE AND OTHER SERVICES OR ANY SITE MATERIALS WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR MALWARE-FREE, AS TO ANY RESULTS THAT MAY BE OBTAINED FROM USE OF ANY CLOUDCOREO SOFTWARE AND OTHER SERVICES OR ANY SITE MATERIALS, THAT ANY CLOUDCOREO SOFTWARE AND OTHER SERVICES OR ANY SITE MATERIALS WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY CUSTOMER FROM CLOUDCOREO OR THROUGH ANY CLOUDCOREO SOFTWARE AND OTHER SERVICES OR ANY SITE MATERIALS WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS CUSTOMER AGREEMENT (OR ANOTHER APPLICABLE AGREEMENT). CUSTOMER IS SOLELY AND ABSOLUTELY RESPONSIBLE FOR PROTECTING ITSELF WHILE USING ANY CLOUDCOREO SOFTWARE AND OTHER SERVICES OR ANY SITE MATERIALS, INCLUDING BUT NOT LIMITED TO CUSTOMER’S USE OF INDUSTRY RECOGNIZED SOFTWARE TO DETECT AND REMOVE, DESTROY OR QUARANTINE ANY MALWARE FROM ANY CLOUDCOREO SOFTWARE AND OTHER SERVICES OR SITE MATERIALS THAT CUSTOMER ACCESSES, USE OR DOWNLOAD FROM THE SITE.

b. CloudCoreo assumes no responsibility and liability for any Third Party Software, Other User Content, or Customer Content stored, uploaded or transmitted on or through the Site, or for any resulting loss or damage, and CloudCoreo is not responsible for any Third Party Software, Other User Content, or Customer Content on the Site that now or in the future causes a “Prohibited Use” under Section 9 of the Customer Agreement. CloudCoreo is not liable to anyone including Customer for the actions of other users of its Site. While CloudCoreo has no obligation to screen, edit or monitor any Third Party Software, Other User Content, or Customer Content, CloudCoreo may in CloudCoreo’s sole and absolute discretion, remove, screen or edit any Third Party Software, Other User Content, or Customer Content at any time and for any reason without notice (including Customer Content), and Customer is solely responsible for creating backup copies of and replacing Customer Content. Uploading, posting or transmitting Customer Content on or through the Site is at Customer’s exclusive risk, cost and expense, and CloudCoreo in its sole and absolute discretion may suspend or terminate Customer’s rights to upload, post or transmit Customer Content on or through the Site particularly if CloudCoreo believes Customer has violated the Customer Agreement or otherwise put at any risk whatsoever any CloudCoreo Software and Other Services or any Site Materials or CloudCoreo’s business whatsoever.

c. CloudCoreo reserves all right to comply with applicable law, and without limiting any other of CloudCoreo’s rights described in this Customer Agreement, and CloudCoreo further reserves its rights to entirely cooperate with any law enforcement agencies requesting or court orders compelling the disclosure of user identities or any Customer Content or Site Materials uploaded, posted or transmitted on or through the Site. CUSTOMER WAIVES AND HOLDS HARMLESS CLOUDCOREO FROM ANY CLAIMS RESULTING FROM CLOUDCOREO’S EXERCISE OF ITS RIGHTS UNDER THIS CUSTOMER AGREEMENT RELATED TO CLOUDCOREO’S ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER CLOUDCOREO, THIRD PARTIES CLAIMING INFRINGEMENT OF PROPRIETARY RIGHTS OR LAW ENFORCEMENT AGENCIES OR COURTS.

20. EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY

a. Exclusions of Certain Damages. NEITHER CLOUDCOREO OR ITS AFFILIATED ENTITIES, NOR ANY OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS OR AGENTS WILL BE LIABLE IN ANY MANNER TO CUSTOMER OR ANYONE ELSE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING ANY DAMAGES FOR UNAUTHORIZED ACCESS TO OR LOSS OF DATA OR INFORMATION, LOSS OF BUSINESS, LOSS OF PROFITS OR THE LIKE) ARISING OUT OF OR RELATING IN ANY WAY TO THE CUSTOMER ORDER THAT INCORPORATES BY REFERENCE THIS CUSTOMER AGREEMENT, INCLUDING BUT NOT LIMITED TO CUSTOMER’S USE OR INABILITY TO USE ANY CLOUDCOREO SOFTWARE AND OTHER SERVICES OR ANY SITE MATERIALS, OR ANY INTERRUPTION OR DISRUPTION OF SUCH USE, OR ANY HARM OR DAMAGE THAT CUSTOMER OR CUSTOMER’S PROPERTY OR THE PROPERTY OF THIRD PARTIES WITH WHOM CUSTOMER INTERACTS SUFFER AS A RESULT OF THE FOREGOING, EVEN IF CLOUDCOREO HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES AND REGARDLESS OF THE CAUSE OF ACTION, THE LEGAL CLAIM OR THEORY ALLEGED (e.g., CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE).

b. Limitation of Liability. THE AGGREGATE LIABILITY OF CLOUDCOREO OR ITS AFFILIATED ENTITIES, OR ANY OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS AND AGENTS TO CUSTOMER OR ANYONE ELSE THAT IS RELATED IN ANY WAY TO CUSTOMER’S USE OF ANY CLOUDCOREO SOFTWARE AND OTHER SERVICE OR ANY SITE MATERIALS OR THE CUSTOMER ORDER THAT INCORPORATES BY REFERENCE THIS CUSTOMER AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION, LEGAL CLAIM OR THEORY ALLEGED (e.g., CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE), WILL IN NO EVENT EXCEED THE GREATER OF FIFTY DOLLARS (USD$50.00) OR FEES CUSTOMER ACTUALLY PAID UNDER THE APPLICABLE CUSTOMER ORDER IN WHICH THE EVENT(S) OCCURRED THAT GAVE RISE TO THE LIABILITY. THE FOREGOING LIMITATION WILL APPLY EVEN IF THE REMEDY DESCRIBED ABOVE FAILS OF ITS ESSENTIAL PURPOSE.

c. Jurisdictional Limitations. Some states and other jurisdictions do not allow the exclusion of implied warranties or limitations of liability, including those excluding incidental or consequential damages, which means that some of the above limitations may not apply to Customer. IN THESE STATES, CLOUDCOREO’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

21. INDEMNIFICATION

CloudCoreo will defend and indemnify Customer from any third party claim that the CloudCoreo Software infringes any copyright, trade secret or United States patent of any unaffiliated third party (an “IP Claim”), provided that: (a) Customer promptly notifies CloudCoreo of the IP Claim; (b) CloudCoreo has sole control over the defense and settlement of the IP Claim; (c) Customer provides such assistance (at CloudCoreo’s) expense in the defense of the IP Claim as CloudCoreo may reasonably requests; and (d) Customer complies with any settlement or court order made in connection with the IP Claim (e.g., relating to the future use of any infringing CloudCoreo Software). Further, if the CloudCoreo Software is found to infringe any copyright, trade secret or United States patent of any Third Party or an injunction on Customer’s use of the CloudCoreo Software subscription service appears reasonably likely to be entered against Customer’s use of the CloudCoreo Software based on an IP Claim, then as Customer’s limited and exclusive remedy, CloudCoreo will use commercially reasonable efforts to either: (i) acquire the right for Customer to continue to use the infringing CloudCoreo Software in accordance with this Agreement; or (ii) modify the infringing CloudCoreo Software to avoid or correct the noncompliance. If CloudCoreo does not accomplish (i) or (ii) in the preceding sentence within a reasonable period after receipt of Customer’s notice of the noncompliance, then CloudCoreo may refund to Customer all of the fees paid by Customer to CloudCoreo under the applicable Customer Order for the infringing CloudCoreo Software in full and complete satisfaction of CloudCoreo’s obligations to Customer with respect to such IP Claim and infringement. CloudCoreo’s obligations under this Section 21 do not apply to any infringement resulting from any: (a) use not in accordance with this Customer Agreement or the Documentation; (b) modification, damage, misuse or other action on behalf of Customer or by any third party; or (c) combination of the CloudCoreo Software with any goods or other items provided by Customer or any third party.

Customer agrees to defend, indemnify and hold harmless CloudCoreo, its employees, directors, officers, agents, its affiliates, licensors, other suppliers and service providers, and successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to Customer’s breach of this Customer Agreement, or any Customer Content or Customer’s misuse of any CloudCoreo Software and Other Services or any Site Materials.

22. GOVERNING LAW, JURISDICTION AND VENUE

Customer agrees that any claim or action of any kind related to the Customer Agreement and applicable Customer Order will be governed by and construed in accordance with the laws of Washington state, as applied to agreements made and performed or to be entirely performed within Washington state, and without regard to Washington state’s conflicts of law rules. In any action at law or in equity related to the Customer Agreement and applicable Customer Order, the parties irrevocably and unconditionally (i) consent and submit to the exclusive jurisdiction and venue of the state and federal courts located in King County, Washington, and (ii) IN ANY ACTION AT LAW, WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY SUCH PROCEEDING.

23. EQUITABLE REMEDIES
Each party acknowledge that any use or disclosure of the other party’s Confidential Information or material protected by intellectual property rights or trade secrets in a manner that breaches or is likely to breach any of the provisions of this Customer Agreement or violate any applicable law may cause such party irreparable damage for which remedies other than injunctive relief may be inadequate. Each party further agree that the party whose rights under this Customer Agreement or any applicable law are breached or violated shall be entitled to seek and receive from a court of competent jurisdiction injunctive or other equitable relief to restrain such breach or violation in addition to other appropriate remedies.

24. EXPORT CONTROL

Customer agrees to comply with all applicable laws and regulations related to export control in using any CloudCoreo Software and Other Services or any Site Materials. Any of the CloudCoreo Software and Other Services or any Site Materials and any other related technology are subject to U.S. laws and regulations, and may be subject to other countries’ export jurisdiction. Customer must comply with all applicable international and U.S. laws, including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, Office of Foreign Assets Control sanctions programs, and end- user, end use, and destination restrictions by U.S. and other governments with respect to any CloudCoreo Software and Other Services or any Site Materials and other related technologies under Customer’s control, particularly if Customer is accessing and using the any CloudCoreo Software and Other Services or any Site Materials from outside of the U.S. Furthermore, Customer’s access and use of any CloudCoreo Software and Other Services or any Site Materials from outside the U.S. is at Customer’s exclusive risk under any applicable laws and regulations.

25. CONTRACTUAL LIMITATION OF ACTIONS AND OTHER CLAIMS

CUSTOMER AGREES THAT ANY CAUSE OF ACTION OR CLAIM IT MAY HAVE AGAINST CLOUDCOREO OR AGAINST CLOUDCOREO’S AFFILIATED ENTITIES, OR THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS AND AGENTS RELATING TO THIS CUSTOMER AGREEMENT AND THE CUSTOMER ORDER IN WHICH IT IS INCORPORATED OR ANY CLOUDCOREO SOFTWARE AND OTHER SERVICES OR ANY SITE MATERIALS IS PERMANENTLY BARRED IF IT IS NOT COMMENCED ON OR BEFORE THE FIRST BUSINESS DAY FOLLOWING TWO (2) CALENDAR YEARS AFTER SUCH CAUSE OF ACTION OR CLAIM ACCRUES.

26. ENTIRE AGREEMENT AND MODIFICATION.

Except as expressly stated otherwise herein, this Customer Agreement and the Customer Order in which it is incorporated by reference into contain the entire agreement between the parties with respect to the subject matter hereof and supersedes all oral understandings, representations, prior discussions and preliminary agreements. Except as otherwise expressly stated herein, this Customer Agreement and the Customer Order in which it is incorporated by reference into may be amended or supplemented only in a writing signed by duly authorized representatives of all parties (e.g., and not by way of limitation, email or other electronic correspondence does not constitute a signed writing). To the extent the terms of this Customer Agreement conflict with the terms of any applicable open source software license agreement governing the use and redistribution of any Customer Composite, any Third Party Software, or CloudCoreo Open Source Components, the conflicting terms of such open source software license agreement will take precedence over the conflicting terms of this Customer Agreement, provided all other non-conflicting terms, conditions, restrictions in this Customer Agreement will remain in full force and effect.

27. SEVERABILITY

If any court of competent jurisdiction determines that any provision of this Customer Agreement and Customer Order in which it is incorporated by reference into is illegal, invalid, or unenforceable, the remaining provisions of the Customer Agreement and Customer Order will remain in full force and effect.