Non-production / Pilot Subscription Agreement

This Non-Production / Pilot Subscription Agreement (“Agreement”) is made and entered into as of the Order Form Effective Date of the first Order Form executed between Ayasdi, Inc. (“Ayasdi”) and the Customer, described in such Order Form (“Customer”). CUSTOMER IS RESPONSIBLE FOR CAREFULLY READING THE TERMS OF THIS AGREEMENT BEFORE SIGNING AN ORDER FORM, CLICKING “ACCEPT” AND/OR ACCESSING OR USING ANY SERVICES OF AYASDI. BY (AS APPLICABLE) SIGNING A SERVICE ORDER, CLICKING “ACCEPT” AND/OR ACCESSING OR USING SUCH SERVICES, CUSTOMER CONFIRMS THAT CUSTOMER HAS READ AND ACCEPTS THIS AGREEMENT. NOTWITHSTANDING ANY DIFFERENT OR ADDITIONAL TERMS CUSTOMER MAY REFERENCE OR PROVIDE, AYASDI’S OFFER OR ACCEPTANCE (AS APPLICABLE) TO ENTER INTO AN AGREEMENT WITH CUSTOMER WITH RESPECT TO THE SERVICES IS EXPRESSLY LIMITED TO THIS AGREEMENT AND CONDITIONED ON CUSTOMER’S ASSENT HERETO.  The terms and conditions of this Agreement shall govern the Services to be provided by Ayasdi under any Order Form submitted by Customer and accepted by Ayasdi, as though the provisions of this Agreement were set forth in their entirety within such Order Form, and so that each Order Form and this Agreement shall be considered one, fully integrated document and agreement.  The term “Ayasdi” shall include any third parties which are providing third party Services identified in an applicable Order Form. A Definitions section is included at the end of this Agreement.  Customer agrees that purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Ayasdi regarding future functionality or features.

1. License Grant/Limitations/Restrictions

Subject to the terms and conditions of this Agreement, Ayasdi hereby grants Customer a non-exclusive, non-transferable, non-assignable worldwide right to use the Service provided hereunder solely for: a) Customer to internally evaluate, trial, or test the Services and not for any production or operational purposes; and b) only for the Specific Application, Business Unit or Project and for the Time Periods as set forth in each fully executed Order Form. All rights not expressly granted to Customer are reserved by Ayasdi and its licensors.  Ayasdi reserves the right to make changes, modifications and enhancements to the Services from time to time.

2. Limitations on Use

Customer may not release to any third party the results of any evaluation of the Service performed by or on behalf of Customer for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes without the prior written approval of Ayasdi.

Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service.

Any use, duplication, or disclosure of the Services by the U.S government is subject to restrictions as set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable.

Additionally, Customer may use the Service only for its own internal business purposes and shall not use the Service to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.

3. Order Process

Customer shall order the Service by completing and signing an Order Form or Statement of Work (“SOW”).  Ayasdi shall accept or reject such Order Form and/or SOW within ten (10) days.  Each accepted, fully executed Order Form and/or SOW shall become incorporated herein by reference as successive Exhibits A (e.g., Exhibit A, Exhibit A-1, etc.).  In the event that Customer’s business practices require a purchase order number be issued prior to payment of any Ayasdi invoices issued pursuant to this Order Form and/or SOW, then such purchase order number must be recorded within the Order Form and/or SOW.  Customer’s execution and return of an Order Form and/or SOW to Ayasdi without designating a purchase order number shall be deemed an acknowledgement that no purchase order number is required for payment of invoices hereunder.  Additionally, terms, provisions or conditions on any purchase order, acknowledgement, or other business form or writing that Customer may use in connection with the provision of Services (or any software) by Ayasdi will have no effect on the rights, duties or obligations of the parties hereunder, regardless of any failure of Ayasdi to object to such terms, provisions or conditions.

4. Customer’s Responsibilities and Indemnities

4.1 Customer Responsibilities.  Customer is responsible for all activity occurring under Customer’s User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. Customer shall: (i) notify Ayasdi immediately of any unauthorized use of any password or account or any other known or suspected breach of security with respect to the Service; (ii) report to Ayasdi immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by Customer or Customer’s Users; and (iii) not impersonate another Ayasdi user or provide false identity information to gain access to or use the Service.  Customer agrees that Customer will comply with all applicable laws and regulations in connection with Customer’s use of the Services, including but not limited to, all applicable privacy and export control laws and regulations. Customer acknowledges that the Services are subject to U.S. export control laws and regulations and Customer represents that Customer is not a citizen of an embargoed country or prohibited end user under applicable U.S. export and anti-terrorism laws, regulations and lists. Customer represents that Customer is not an individual less than 18 years of age.

4.2 Customer Indemnity.  Customer shall indemnify and hold Ayasdi, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) to the extent arising out of or in connection with: (i) a claim alleging that use of the Customer Data or Customer Materials infringes a copyright, patent, or a trademark of, or has caused harm to the rights of, a third party; (ii) a claim, which if true, would constitute a violation by Customer of Customer’s representations and warranties under this Agreement; or (iii) a claim arising from the breach by Customer or Customer’s Users of this Agreement, provided in any such case that Ayasdi (a) promptly gives notice of the claim to Customer; (b) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle such claim unless such settlement unconditionally releases Ayasdi of all liability and does not adversely affect Ayasdi’s business or Service); (c) provides to Customer all available information and reasonable assistance; and (d) has not compromised or settled such third-party claim.

4.3 Ayasdi Indemnity.  Ayasdi shall indemnify and hold Customer, its subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) to the extent arising out of or in connection with a third party claim alleging that the Ayasdi Technology infringes a copyright, patent (U.S. only), or a trademark of, or has caused harm to the rights of, a third party, provided in any such case that Customer (a) promptly gives notice of the claim to Ayasdi; (b) gives Ayasdi sole control of the defense and settlement of the claim (provided that Ayasdi may not settle such claim unless such settlement unconditionally releases Customer of all liability and does not adversely affect Customer’s business); (c) provides to Ayasdi all available information and reasonable assistance; and (d) has not compromised or settled such third-party claim.  If the Ayasdi Technology becomes, or in Ayasdi’s opinion is likely to become, the subject of an infringement claim, Ayasdi may, at its option and expense, either (a) procure for Customer the right to continue using the Ayasdi Technology, (b) replace or modify the Ayasdi Technology so that it becomes non-infringing, or (c) accept termination of the licenses granted hereunder and give Customer a refund for the fees paid by Customer less a reasonable allowance for the period of time Customer has used the Ayasdi Technology.  Notwithstanding the foregoing, Ayasdi will have no obligation under this Section 4.3 or otherwise with respect to any infringement claim based upon (i) any use of the Ayasdi Technology not in accordance with this Agreement or for purposes not intended by Ayasdi, (ii) any use of the Ayasdi Technology in combination with other products, equipment, software, or data not supplied by Ayasdi, (iii) any use of any release of the Ayasdi Technology other than the most current release made available to Customer, or (iv) any modification of the Ayasdi Technology by any person other than Ayasdi or its authorized agents or subcontractors.  THIS SECTION 4.3 STATES AYASDI’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS.

5. Account Information and Data

Ayasdi does not own any Customer Data. Customer, not Ayasdi, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use all Customer Data, and Ayasdi shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data.  Customer agrees and acknowledges that (i) Ayasdi is not obligated to retain Customer Data for longer than 30 days after termination, and (ii) Ayasdi has no obligation to retain Customer Data, and may delete Customer Data from the Service, if Customer has materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 10 days of notice of such breach. Upon termination for cause resulting from an uncured breach, Customer’s right to access or use Customer Data immediately ceases, and Ayasdi shall have no obligation to maintain any Customer Data.

6. Professional Services

If professional services (such as implementation, training, consulting, etc.,) are included in any Order Form and/or SOW (“Professional Services”), in addition to the provisions in any mutually agreed upon Statement of Work (“SOW”) the following provisions shall apply. Ayasdi shall retain all ownership rights to any and all deliverables specified in an SOW (“Deliverables“) excluding, any pre-existing technology or materials supplied by Customer for incorporation into such Deliverable.  Ayasdi grants Customer a royalty-free, non-exclusive, non-transferable, non-assignable worldwide license to use any Deliverable, to the extent necessary to permit Customer to use the Deliverable in connection with the Services during the Term.  Customer acknowledges that nothing in this Agreement shall restrict or limit Ayasdi from performing similar services for any third party.

Customer may reasonably request in writing that revisions be made with respect to the Professional Services or deliverables set forth in that SOW (each, a “Change Order”).  If a Change Order recites revisions that materially increase the scope of the Professional Services or the effort required to deliver deliverables under the applicable SOW, then within 5 business days after Ayasdi’s receipt of such Change Order, Ayasdi will deliver to Customer a written, revised SOW reflecting Ayasdi’s reasonable determination of the revised Professional Services, deliverables, delivery schedule, and payment schedule, if any, that will apply to the implementation of the revisions.  If Customer approves the revised SOW, then the parties will execute it, and upon execution, the revised SOW will supersede the then-existing SOW.  If Customer does not approve the revised SOW within 5 business days after its receipt by Customer, the then-existing SOW will remain in full force and effect, and Ayasdi will have no further obligation with respect to the applicable Change Order.

Ayasdi may utilize independent contractors to perform all or part of the Professional Services. Ayasdi will remain solely responsible for the performance of all of the Professional Services that are subcontracted, if applicable.

7. Intellectual Property Ownership

Ayasdi alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Ayasdi Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Service. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service, the Ayasdi Technology or the Intellectual Property Rights owned by Ayasdi. The Ayasdi name, the Ayasdi logo, and the product names associated with the Service are trademarks of Ayasdi or third parties, and no right or license is granted to use them.

8. Charges and Payment of Fees

Customer shall pay all fees or charges as specified on each executed Order Form and/or SOW.  All payment obligations are non-cancelable and all amounts paid are nonrefundable. Neither party will disclose any pricing terms or other terms of this Agreement to anyone other than its attorneys, accountants, and other professional advisors under a duty of confidentiality except (a) as required by law, or (b) pursuant to a mutually agreeable press release. Unless otherwise agreed, invoices are to be issued in US Dollars.

9. Term, Billing and Renewal

The Pilot Term of this agreement shall begin on the effective date of the first Order Form and/or SOW signed between the parties.  Service Activation for each Service shall commence on the Order Form and/or SOW effective date which describes the Service in question. In the event that an Order Form and/or SOW contains services added to an existing subscription, such Added Services shall be coterminous with the initial or renewal term and shall be billed from the Order Form and/or SOW effective date.

Customer will pay all invoices as described in the Order Form and/or SOW.  Unless terminated as described in Section 11, upon expiration of the Pilot Term of any Order Form and/or SOW, such Order Form and/or SOW shall automatically terminate.  Ayasdi’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Ayasdi’s income. Customer will be billed, and payments will be made, in U.S. dollars. If Customer believes Customer’s bill is incorrect, Customer must contact Ayasdi in writing within 30 days of the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.

Customer agrees to provide Ayasdi with accurate billing and contact information, including Customer’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and Administrator. Customer agrees to update this information within 30 days of any change to it. If the contact information Customer has provided is false or fraudulent, Ayasdi reserves the right to terminate Customer’s access to the Service in addition to any other legal remedies.

10. Non-Payment and Suspension

In addition to any other rights granted to Ayasdi herein, Ayasdi reserves the right to suspend or terminate this Agreement and Customer’s access to the Service if Customer’s account becomes delinquent and is uncured for a period of thirty (30) days. Delinquent invoices are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, from the date due, plus all expenses involved in the debt’s collection.  Customer will continue to be charged for License fees during any period of Service suspension. If Ayasdi initiates termination of this Agreement for cause, as further described in Section 12, Customer will be obligated to pay the balance due on any Order Form(s) and/or SOW(s) then in effect computed in accordance with Section 8 above, provided, however, that any such Order Form and/or SOW shall expire at the end of the Pilot Term.  In the event Customer fails to make payments per payment terms as set forth in this Agreement or in any applicable Order Form, and legal enforcement or third party collection efforts by Ayasdi is deemed necessary, Customer agrees to pay all reasonable legal fees and costs incurred by Ayasdi.

11. Termination Upon Expiration

Either party may terminate any Order Form and/or SOW upon written notice delivered to the other party no later than thirty (30) days prior to the expiration of the Pilot Term of such Order Form and/or SOW.

12. Termination for Cause

Either party may terminate this Agreement (and any Order Form(s) and/or SOW(s) then in effect) if the other party breaches any material term of this Agreement which, in the case of Customer, will include any breach of Customer’s payment obligations or unauthorized use by Customer of the Ayasdi Technology or Service, if the other party fails to cure such breach within ten (10) business days after notice of such breach.

13. Representations & Warranties

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Ayasdi further represents and warrants that the Service will perform substantially in accordance with the online Ayasdi help documentation under normal use and circumstances.  In the event of a breach of this warranty, Customer’s sole remedy and Ayasdi’s sole obligation will be for Ayasdi to make reasonable commercial efforts to correct the non-conformity or, if Ayasdi is unable to correct the non-conformity within 90 days after Customer’s written notice, for Customer to terminate the applicable Order Form and/or SOW.  Customer further represents and warrants that Customer has not falsely identified itself nor provided any false information to gain access to the Service and that Customer’s billing information is correct.  Ayasdi warrants that the Professional Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. For any breach of the above warranty, Customer’s exclusive remedy and Ayasdi’s entire liability will be the re-performance of the applicable Professional Services. If Ayasdi is unable to re-perform the Professional Services as warranted, Customer will be entitled to recover the Professional Services fees paid to Ayasdi for the deficient Professional Services. Customer must make any claim under the foregoing warranty to Ayasdi in writing within ninety (90) days of performance of such Professional Services in order to receive warranty remedies.

14. Disclaimer of Warranties

EXCEPT AS PROVIDED IN SECTION 13 AYASDI AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. AYASDI AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED THROUGH THE SERVICE WILL MEET REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS.  ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY AYASDI AND ITS LICENSORS.

15. Internet Delays

AYASDI’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. AYASDI IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

16. Limitation of Liability

IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL AYASDI’S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.

17. Marketing

Customer grants Ayasdi the right to use Customer’s name, mark and logo on Ayasdi’s website, in Ayasdi marketing materials; provided, however, that any such use must be pre-approved, not to be unreasonably withheld, in writing by Customer.  Without requiring prior Customer approval, Customer agrees that Ayasdi may state the fact that Customer is a Ayasdi customer without revealing specifics about the Agreement or the relationship.

18. Notice

All notices required to be provided under this Agreement must be delivered in writing by nationally recognized overnight delivery service, by electronic facsimile (fax), by electronic mail as described below, or by US mail to the other party at the address set forth beneath such party’s signature. Customer may give notice to Ayasdi by emailing Notices@Ayasdi.com and Ayasdi may give notice by emailing Customer’s billing contact as specified on the Order Form and/or SOW.  All notices shall be deemed to have been given upon receipt or, if earlier, two (2) business days after being deposited in the mail as required above. Either party may change its address by giving timely notice of the new address to the other party pursuant to this Section and identifying in such notice the date on which such change is effective.

19. Assignment

Neither party may assign this Agreement to any third party except upon the other party’s prior written consent, which consent not to be unreasonably withheld; provided, that no such consent shall be required in the event of an assignment to a successor-in-interest to the business of the assigning party (or the portion of the business which is the beneficiary of this Agreement).  Notwithstanding the above, Customer shall not assign this Agreement to any third party which is a competitor to Ayasdi without receiving Ayasdi’s prior written consent.  Any purported assignment in violation of this section shall be void. Subject to the foregoing, this Agreement and each and all of the provisions hereof bind and benefit the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns.

20. Confidentiality

Each party (as a “Receiving Party” hereunder) shall not disclose to any third party, any Confidential Information of the other party (as a ‘Disclosing Party” hereunder) provided to such Receiving Party in anticipation of, or in connection with the performance of this Agreement.  For the avoidance of doubt, this includes Confidential Information provided to the Receiving Party prior to the Effective Date of this Agreement.  As used herein, the term “Confidential Information” refers to any and all financial, technical, commercial, or other information concerning the business and affairs of the Disclosing Party, including, without limitation, any cost or pricing information, contractual terms and conditions, marketing or distribution data, business methods or plans.  If Confidential Information is (a) provided as information fixed in tangible form or in writing (e.g., paper, disk or electronic mail), such shall be conspicuously designated as “Confidential” (or with some other similar legend) or (b) provided orally, such shall be identified as confidential at the time of disclosure and confirmed in writing within thirty (30) days of disclosure, unless a reasonable person would understand such information to be confidential based on its content.  Confidential Information does not include information which (I) becomes generally available to the public other than as a result of a disclosure by the Receiving party, (ii) was available to a party on a non-confidential basis prior to its disclosure by the other party or in connection with the performance by such party of its obligations under this Agreement, (iii) becomes lawfully available to a party on a non-confidential basis from an independent third party, or (iv) is independently developed by the Receiving Party without use or reference to Disclosing Party’s Confidential Information.  The Receiving Party will not use Confidential Information for any purpose other than carrying out its obligations as set forth in this Agreement and shall not disclose Confidential Information to any third party, without the prior written consent of the Disclosing Party and an agreement in writing from the third party that it will adhere to the confidentiality obligations imposed herein. Third parties shall not include agents of the Receiving Party, employees or affiliates of the Receiving Party, attorneys, accountants, and other professional advisors of the Receiving Party, or potential acquirers of Receiving Party, in each case such person or entity must have a legitimate reason to have access to such Confidential Information and must be under a duty to protect such Confidential information which duty is substantially equivalent to the obligations contained herein.  Each Receiving Party’s confidentiality obligations with respect to such Disclosing Party’s Confidential Information shall remain in effect for the Term of this Agreement and for a period of three (3) years after the termination or expiration of this Agreement.  For the avoidance of doubt, Confidential Information with respect to Customer includes Customer Data, and with respect to Ayasdi includes all pricing terms offered to Customer under any Order Form, the Ayasdi Technology and the results of any evaluation of the Services performed by or on behalf of Customer for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.  The parties agree that any Non-Disclosure Agreement entered into prior to the applicable Order Form Effective Date shall not limit or reduce each respective Party’s obligations with respect to Confidential Information disclosed under this Agreement.

21. General

This Agreement shall be governed by California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form and/or SOW) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. Neither party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, terrorism, riot, acts of God or governmental action.  This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.  Customer agrees to comply fully with all relevant export laws and regulations of the United States (“Export Laws”) to ensure that neither the Service, nor any direct product thereof are: (a) exported or re-exported directly or indirectly in violation of Export Laws; or (b) used for any purposes prohibited by the Export Laws, including but not limited to nuclear, chemical, or biological weapons proliferation.  No joint venture, partnership, employment, or agency relationship exists between Customer and Ayasdi as a result of this Agreement or use of the Service. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. This Agreement, together with any applicable Order Form and/or SOW, comprises the entire agreement between Customer and Ayasdi regarding the subject matter contained herein and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding such subject matter.

22. Definitions

As used in this Agreement and in any Order Form(s) and/or SOW(s) associated herewith:

Content” means the audio and visual information, documents, software, products and services contained in or made available via the Service, other than Customer Data; “Customer Data” means any data, information or material that Customer or Customer’s Users, subscribers or partners may disclose or submit to Ayasdi or the Service in the course of using the Service; “Order Effective Date” means the date identified in an Order Form and/or SOW as the date on which such Order Form and/or SOW shall be effective; “Pilot Term” means the initial period specified in the applicable Order Form and/or SOW during which Customer is obligated to pay for the Service.; “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world; “Administrator(s)” means those Users designated by Customer who are authorized to submit, whether electronically or in writing, Order Form(s) and/or SOW(s) and to create Customer accounts and otherwise administer Customer’s use of the Service; “Order Form(s)” or “SOW(s)” means the form evidencing the initial subscription order for the Service and any subsequent Order Form(s) and/or SOW(s) submitted online or in written form, specifying, among other things, the Order Effective Date and/or other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such fully executed Order Form and/or SOW to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form and/or SOW, the terms of this Agreement shall prevail); “Ayasdi Technology” means all of Ayasdi’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by Ayasdi in providing the Service; “Service(s)” means Ayasdi’s online data analysis services identified during the ordering process as described in the relevant product data sheet(s) and as otherwise described by Ayasdi on http://www.Ayasdi.com, developed, operated, and maintained by Ayasdi and accessible via http://www.Ayasdi.com or another designated web site or IP address, or ancillary online or offline products and services provided or licensed to Customer by Ayasdi, to which Customer is being granted access under this Agreement, including the Ayasdi Technology, the Content and any product, service or license belonging to a third party that appears on an Order Form and/or SOW; “User(s)” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by Customer (or by Ayasdi at Customer’s request); “Work Product” means any copyrightable works, products, discoveries, developments, designs, work product, deliverables, improvements, inventions, processes, techniques and know-how made, conceived, reduced to practice or learned by Ayasdi (either alone or jointly with Customer or others) that result from professional services included in any Order Form and/or SOW and provided to Customer hereunder.

Rev 150406