Terms and Conditions as of 08.21.25

These General Terms and Conditions (the “GTC”) apply to each Rygen Sales Order Form (“Order Form”) entered into by and between Rygen Technologies, Inc.(“Rygen”) and the customer entity named in the Order Form (“Customer”). Customer and Rygen may be referred to herein individually as a “Party” and collectively as the “Parties.” The GTC contains the terms and conditions that govern the provision of certain products and services by Rygen to Customer as indicated in the Order Form, which may include cloud-based software-as-a-service offerings and associated support services or other ordered products or services (“Services”).

Each Order Form will form a separate agreement that is governed by and incorporates the following (collectively, the “Agreement”):
1.    Order Form
2.   Statement of Work(s)
3.   These GTC
4.   Service Level and Support Terms

Each of the above will include any separate document, policy or provision referred to within. If there is a conflict between any of the above, the order of precedence will be the order in which they are listed above.

Inconsideration of the mutual covenants and agreements contained in the Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are expressly acknowledged, the Parties hereby agree as follows:

1.    Services.

1.1. Generally. Rygen will provide the Services as ordered by Customer through an Order Form duly executed by an authorized representative of both Parties, in accordance with the terms and conditions of this Agreement.

1.2. Order Form. The Order Form will set forth (a) a description of the Services; (b) the pricing for such Services; (c) the term of such Services; and (d) any additional terms and conditions related to such Services.

1.3. Statement of Work. The Services may be further described in one or more statement of work(s) (each, an “SOW”) which may be entered into in connection with the Order Form. Each SOW may include (a) additional descriptions of the Services to be provided by Rygen, (b) pricing or additional fees associated with the Services, (c) deliverables or timeliness associated with the Services, and (d) such additional terms relating to the relevant Services as may be agreed between the Parties.

1.4. Performance Standard. Rygen will perform the Services (i) in a professional and workmanlike manner, (ii) consistent with the terms of this GTC, any applicable Order Form and the Service Level and Support Terms, and (iii) in compliance with all applicable laws, rules and regulations.

1.5. Subcontracting. Rygen may engage subcontractors and other third parties to assist in performing the Services or its other obligations under this Agreement, provided that Rygen shall remain responsible for the performance of its obligations under the Agreement.  

1.6. Third Party Software. The Services may contain or involve Customer’s access to certain software or services made available by third parties (“Third Party Software”), as may be further specified in an Order Form. In addition, the Third Party Software include components subject to open source software, freeware, shareware or similar licensing or distribution models (“Open Source Components”). Customer will be responsible to hold or acquire any required licenses to any Third Party Software enabled through or interfacing with Rygen’s products, software or other Services provided under this Agreement (e.g., SMC3, Trimble, DAT). Rygen’s products, including but not limited to Corsair, may require Customer to input license keys to suchThird Party Software for activation of these services. Customer may be required to agree to additional third party terms and conditions relating to Third Party Software (“Third Party Terms”) and, in the event any such Third Party Terms apply, Customer will be responsible for ensuring that it complies with such Third Party Terms and for acquiring and maintaining the requisite licenses to such Third Party Software. CUSTOMER AGREES THAT THE OPEN SOURCE COMPONENTS AND THIRD PARTY SOFTWARE ARE PROVIDED ON AN “AS IS”, “WHERE IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS AND THAT RYGEN WILL NOT HAVE ANY RESPONSIBILITY FOR ANY USE OF THE OPEEN SOURCE COMPONENTS AND THIRD PARTY SOFTWARE, OR ANY LIABILITY FOR ARISING FROM THE OPEN SOURCE COMPONENTS AND THIRD PARTY SOFTWARE.

1.7. Customer Dependencies. Customer acknowledges that Rygen’s ability to meet its obligations to provide the Services may be dependent on certain necessary Customer inputs, including without limitation, (i) access to required data and information, systems and premises as may be necessary to provide the Services; (ii) the performance of certain third party providers that Customer may require Rygen to use in connection with its obligations hereunder, (iii) Customer’s compliance with any applicable Third Party Terms, and (iv) other dependencies as may beset forth in an Order Form or otherwise agreed to between the Parties in writing (collectively, (i) through (iv) the “Customer Dependencies”). The Parties agree that the lack of or failure to provide any Customer Dependency may limit, or render impossible, Rygen’s provision of the Services, that Customer has the primary responsibility for ensuring that all Customer Dependencies are satisfied and fulfilled, and that the failure of Rygen to provide the Services according to this Agreement shall not constitute a breach to the extent that such failure to provide is due to the failure of a Customer Dependency. Rygen will reasonably collaborate with Customer to remediate any lack of or failure to provide Customer Dependency where such collaboration would facilitate such remediation.

2. Fees.

2.1. Fees. In consideration of the Services, Customer shall pay to Rygen the fees set forth in an applicable Order Form (“Fees”), or if no fees are set forth in the Order Form, at Rygen’s then-standard subscription pricing or professional rates, as applicable. In addition, certain Services may require travel by Rygen personnel, including with respect to on-site Services ordered by Customer. Customer agrees to reimburse Rygen for all reasonable and documented transportation, lodging, meals and other travel-related expenses incurred in connection with the provision of the Services.

2.2. Invoicing. Rygen will invoice Customer the relevant Fees on a monthly basis in advance for Services to be provided in the following month, or as otherwise indicated on an Order Form. Customer will pay the invoiced amounts within thirty (30) days of receiving such invoice. Any late payments will accrue interest at a rate of one and one half percent (1.5%) per month.

2.3. Taxes. Unless otherwise specified in an Order Form, the Fees exclude any taxes, duties, levies or charges of any kind assessable by any governmental authority (including any VAT, sales/use or withholding taxes). Customer shall be responsible for any taxes related to the Services, provided that each Party will be responsible for the payment of all taxes based on its own income.  If Rygen is legally required to pay or collect any taxes for which Customer is responsible, Rygen may include such amounts on the same invoice as the applicable fee for the Service for which they were incurred.

2.4. Disputed Amounts. Customer will provide notice of any disputed amounts on any invoice prior to the payment due date under such invoice. The Parties agree to work in good faith to promptly resolve any disputes regarding invoices or payments.

3.     Confidentiality.

3.1. Definition of Confidential Information. Rygen and Customer each acknowledge that it may receive Confidential Information (in such case, “Recipient”) of or from the other (in such case, “Discloser”) in connection with this Agreement. For the purposes of this Agreement, “Confidential Information” means any and all nonpublic information and materials of or related to Discloser disclosed in connection with this Agreement that is either marked as confidential or proprietary, or would reasonably be understood to be confidential or proprietary.  Confidential Information does not include information to the extent it: (i) is or becomes known to the general public other than by an unauthorized disclosure by Recipient or its representatives; (ii) was known by Recipient before its disclosure by Discloser; (iii) is rightfully obtained without restriction from a third party who has the right to make such disclosure; or (iv) is developed by Recipient without use of, reliance upon, or reference to any Confidential Information of Discloser.

3.2. Nondisclosure and Limited Use. Recipient will hold Discloser’s Confidential Information in trust and confidence and use reasonable measures to protect such Confidential Information, including, at a minimum, those measures that Recipient takes to protect its own Confidential Information. Recipient will not use Discloser’s Confidential Information, or share or disclose such Confidential Information with any other person, except as necessary to provide or receive the Services under this Agreement and to perform its obligations under this Agreement. In the event Recipient does share Discloser’s Confidential Information as permitted above, it will cause such person to comply with confidentiality obligations substantially similar and no less protective than those in this Agreement.

3.3. Permitted Disclosure. Recipient may use or disclose Discloser’s Confidential Information to the extent approved in writing in advance by Discloser, or to the extent Recipient is legally compelled to disclose such Confidential Information under the rules of any applicable law, rule or regulation. Before any such permitted disclosure, Recipient will provide Discloser, to the extent legally permissible, reasonable advance notice of such anticipated disclosure and will cooperate with Discloser to protect against any such disclosure or narrow the scope of such disclosure.

3.4. Notice for Unauthorized Use. Recipient will promptly notifyDiscloser after becoming aware of any actual loss or unauthorized use or disclosure of or access to Discloser’s Confidential Information and will take reasonable steps to limit, stop or otherwise prevent such loss or unauthorized use, disclosure or access.

3.5. Return or Destruction of Confidential Information. Upon termination or expiration of this Agreement, Recipient will, at Discloser’s instruction, promptly destroy or return to Discloser all Confidential Information and confirm such return or destruction to Discloser. Recipient may retain any such materials to the extent required by law, regulatory authority, or bona fide document retention policy and subject to the confidentiality obligations set forth in this Agreement.

3.6. Survival. The confidentiality obligations set forth in this Agreement will continue during the Term and for three (3) years following the Term, and with respect to any Confidential Information that constitutes a trade secret, will continue for as long as such Confidential Information remains a trade secret.

4.    Data

4.1. Ownership of Customer Data. As between Customer and Rygen, Customer will retain exclusive ownership of data provided by Customer or on its behalf (“Customer Data”).  Customer shall ensure that it has and maintains at all times all rights, consents and licenses necessary to transmit and provide access to the Customer Data to Rygen and to permit Rygen and its service providers to use Customer Data to provide the Services and as otherwise permitted under this Agreement. Customer shall be responsible for the accuracy, adequacy, quality and completeness of the Customer Data.

4.2. License to Customer Data. Customer hereby grants to Rygen a worldwide, non-exclusive, fully paid-up, royalty-free, sub-licensable (through multiple tiers), non-transferable (except in connection with an assignment permitted under Section 10.3 (Assignment)) license to use, reproduce, modify and otherwise exploit Customer Data: (i) to provide and perform the Services or otherwise perform its obligations under this Agreement, (ii) to improve, support and develop Rygen’s products and services, and (iii) to perform or generate research, statistical analyses, models, comparison reports and other analyses.  The license granted pursuant to clauses (ii) and (iii) in the foregoing sentence shall be perpetual and irrevocable, and shall survive the termination or expiration of this Agreement. Without limiting the fore going, Customer agrees that Rygen may collect or generate and retain exclusive ownership of all transactional, technical, statistical, log, or other usage data or analytics derived from interactions with the Services, in anonymized and aggregated form, (collectively, “Usage Metrics”), and may freely use such Usage Metrics without restriction, including to analyze and improve Rygen’s products and services, and to develop benchmarking data and industry reports, provided that any Usage Metrics. As between Rygen and Customer, any Service improvements, modifications or inventions or any new Services relating to or based on any Usage Metrics developed by or on behalf of Rygen (but excluding Customer Data itself) will be solely owned by Rygen.

4.3. Security. Rygen will maintain reasonable security policies and procedures designed to protect the security of Customer’s Confidential Information, including (i) maintaining reasonable administrative, physical and technical controls over data centers, offices and other facilities that provide the Services, and (ii) using commercially reasonable efforts to protect systems from unauthorized and unlawful access, including the use of firewall, anti-virus and data encryption technologies. If Rygen becomes aware of an actual or suspected security breach of Customer’s systems or other compromise to the security or integrity of any of Customer’s data in its possession or control, Rygen will (a) promptly notify Customer as soon as reasonably practicable after becoming aware of such event, (b) take reasonable remedial action to prevent similar events from occurring, and (c) reasonably cooperate with customer in any government or customer investigations and in sending notices to any persons affected by such event.

4.4. Customer Personal Information. Unless otherwise agreed toby the Parties in an Order Form or reasonably anticipated in the scope of the Services, Customer will not provide Rygen with any personal information that relates to an identified or identifiable living individual (“Customer Personal Information”). In the event Rygen learns that it has received Customer Personal Information other than asset forth in  an Order Form or reasonably anticipated in the scope of the Services, it may notify Customer and atCustomer’s option, return, redact or destroy such Customer PersonalInformation.

5. Representations and Warranties; Disclaimer.

5.1. Mutual Representations and Warranties. Each Party hereby represents and warrants to the other Party that:
a) It is lawfully able to and has the authority to enter into this Agreement;
b) It is duly organized, qualified and registered to transact business in all relevant locations;
c) This Agreement has been duly and validly executed and delivered by such Party and constitutes a legal, valid and binding obligation of such Party;
d) The execution, delivery and performance of this Agreement will not conflict with or violate or cause a breach of any agreement, contract or instrument to which such Party is a party.

5.2. Disclaimer.  THE FORE GOING REPRESENTATIONS AND WARRANTIES ARE IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AND RYGEN EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THEIR EQUIVALENTS UNDER THE LAWS OF ANY JURISDICTION. NO WARRANTY IS MADE BY RYGEN ON THE BASIS OF TRADE USAGE OR COURSE OF DEALING. RYGEN DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE USE OR RESULTS OF THE USE of the services, OR THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE USE OF THE SERVICES WILLBE UNINTERRUPTED OR ERROR-FREE. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE OPERATION OF THE SERVICES RELIES ON THE OPERATION OF THE INTERNET, TELECOMMUNICATIONS INFRASTRUCTURE AND OTHER THIRD PARTY SERVICES AND THAT RYGEN WILL NOT BE LIABLE FOR ANY FAILURES OF SUCH THIRD PARTY SERVICE PROVIDERS.

5.3. Critical Applications Disclaimer.  CUSTOMER HEREBY EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY RYGEN SOFTWARE PROVIDED PURSUANT TO THIS AGREEMENT, IS NOT DESIGNED FOR ANY CRITICAL APPLICATIONS AND THAT RYGEN PROVIDES NO WARRANTY THAT ANY SERVICES ARE FIT FOR CRITICAL APPLICATIONS. “CRITICAL APPLICATIONS” MEANS LIFE SUPPORT SYSTEMS ORTHE LIFE SUPPORT MARKET, MEDICAL APPLICATIONS, CRITICAL CARE APPLICATIONS, CONNECTIONS TO IMPLANTED MEDICAL DEVICES, COMMERCIAL TRANSPORTATION OR AVIATION, NUCLEAR FACILITIES OR SYSTEMS, OR ANY OTHER APPLICATIONS WHERE PRODUCT FAILURE COULD LEAD TO INJURY TO PERSONS, LOSS OF LIFE, OR SEVERE PROPERTY OR ENVIRONMENTAL DAMAGE. RYGEN HEREBY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY ARISING OUT OF THE USE OF ANY SERVICES IN ANY CRITICAL APPLICATION.

6. Intellectual Property.

‍6.1. Ownership of Background IP. “Background IP”means any intellectual property of a Party in existence before the Term commences, or developed by or on behalf of such Party outside of this Agreement. Each Party will each retain ownership of its respective BackgroundIP. For the avoidance of doubt, as between the Parties, the Services shall be Rygen’s Background IP, and Rygen will retain all rights, title and interests in and to the Services.

6.2. License to Use the Services. Rygen hereby grants to Customer a non-exclusive, worldwide, non-sublicensable, non-transferrable license to access and use the Services solely for Customer’s internal business purposes for the term of such Service set forth in the Order Form. Except as expressly set forth herein, nothing in this Agreement shall be deemed or interpreted to grant or confer on Customer any licenses, rights, title or interests in or to the Services or any Rygen Background IP, whether by implication, estoppel or otherwise.

6.3. Use Restrictions. Customer will not, and will not allow any employee or third party to (i) copy, distribute, display, access, or use the Services or any portion thereof, except as expressly provided for herein, (ii) modify or create any derivative works of or based upon the Services or any portion thereof; (iii) sublicense or permit the use of the software incorporated in the Services by any other person; (iv) reverse engineer, disassemble, reverse compile or decompile, translate, re-engineer, or otherwise attempt to derive the source code of the Services; or (v) encumber, sell, rent, lease, loan, sublicense or otherwise transfer to any other party any rights to the Services. Any attempt to assign or transfer any of Customer’s rights, duties or obligations under this Agreement (except as permitted by Section 10.3 (Assignment)) will be null and void, unless agreed to in advance in writing by Rygen.

6.4. Feedback. Customer may, from time to time, provide recommendations, comments, questions, corrections, changes, feedback, enhancement requests and suggestions for new features, functionality or other improvements relating to the Services or Rygen’s business (“Feedback”). Customer hereby grants to Rygen a perpetual, irrevocable, worldwide, royalty-free, sub-licensable and non-exclusive license to use and exploit any Feedback, which license shall survive the termination or expiration of the Agreement.

‍7.  Limitation of Liability.

7.1. EXCEPT FOR A PARTY’S BREACH OF SECTION 3 (CONFIDENTIALITY), SECTION 4 (DATA) OR SECTION 6 (INTELLECTUAL PROPERTY), A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 (INDEMNIFICATION), OR A PARTY'S FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR LOST PROFITS OR LOST REVENUE, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, STATUTORY, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7.2. EXCEPT FOR RYGEN'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 (INDEMNIFICATION) AND FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL RYGEN'S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNTS PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE LIABILITY (“GENERAL CAP”), PROVIDED THAT RYGEN'S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO A BREACH OF SECTION 3 (CONFIDENTIALITY) OR SECTION 4 (DATA) WILL NOT EXCEED THREE (3) TIMES THE GENERAL CAP; IN EACH CASE, REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY, WHETHER IN CONTACT, TORT, OR OTHERWISE.

8.  Indemnification.

‍8.1. General. Each Party will indemnify, defend and hold harmless the other Party and its directors, officers, employees, agents, and subcontractors (the “Indemnified Parties”) from any loss, liability, damage, award, settlement, judgment, fee, cost or expense (including reasonable attorneys’ fees and costs of suit) (“Losses”) arising out of any third-party claim, allegation, action, demand, proceeding or suit against any of them that arises out of (i) such Party’s fraud, gross negligence or willful misconduct, or (ii) any claim that the other Party’s use of any materials, data or intellectual property of the other Party in accordance with this Agreement infringes, misappropriates or otherwise violates the intellectual property rights of a third party. The above indemnification obligation will not apply to the extent that suchLosses arose from: (a) the Indemnified Parties’ fraud, gross negligence or willful misconduct, (b) the Indemnified Parties’ violation of any applicable law, (c) the Indemnified Parties’ use of any materials, data or intellectual property of the other Party in a manner not in accordance with this Agreement, or (d) the modification of such materials, data or intellectual property of the other Party in a manner not specifically authorized in writing by the other Party (including the combination of any of the same with any other materials, data or intellectual property). In the event a Party’s materials, data or intellectual property is alleged to infringe, misappropriate or violate any third party intellectual property, such Party may: (I) obtain for the other Party the right to use such materials, data or intellectual property free of claims of infringement, misappropriation or violation, or (II) modify or replace such materials, data or intellectual property so that they no longer infringe, misappropriate or violate such third party intellectual property (provided that such modification does not degrade the performance or quality of the Services).

8.2. Indemnification Procedure. The Indemnified Party will promptly notify the indemnifying party in writing of any indemnifiable claim and promptly tender its defense to the indemnifying party. Any delay in such notice will not relieve the indemnifying party from its obligations to the extent it is not prejudiced thereby. The Indemnified Party will cooperate with the indemnifying party at the indemnifying party’s expense. The indemnifying party may not settle any indemnified claim in a manner that adversely affects the Indemnified Party without its consent (which will not be unreasonably withheld or delayed). The Indemnified Party may participate in its defense with counsel of its own choice at its own expense.

8.3. Exclusive Remedy. This Section 8 (Indemnification) sets forth Customer’s sole remedy, and Rygen’s sole liability and obligation for, any actual or alleged claims or Losses that the Services infringe, misappropriate or violate any third party intellectual property right.

9. Term; Termination of Services.

9.1. Term. The term of this Agreement (“Term”) will commence as of the first Order Form entered into between the Parties pursuant to this GTC, and will remain in effect until the earlier of (i) the expiration of all Service or subscription terms set forth in the applicable Order Form; and (ii) termination under this Section 9 (Term;Termination of Services).

9.2. Termination for Breach. Either Party may terminate this Agreement upon written notice to the other Party if the other Party materially breaches any provision of this Agreement and fails to cure the same within thirty (30) days after written notice.

9.3. Termination for Insolvency. Either Party may terminate this Agreement upon notice if the other Party is unable to pay its debts when due, makes any assignment for the benefit of creditors, files any petition under the bankruptcy or insolvency laws, has a receiver or trustee to be appointed for its business or property, or is adjudicated bankrupt or insolvent.  

9.4. Effect of Termination. Upon termination or expiration of the Agreement, all rights granted by Rygen under the Agreement, including all rights to use the Services, will terminate, and Customer will stop using the Services and return or destroy any copies of the Services and Rygen Confidential Information in its possession or control. Customer will remain liable for the payment any outstanding Fees associated with Services rendered prior to the effective date of termination or expiration.

9.5. Survival. Any provision which is expressly or by implication intended to survive termination or expiration of this Agreement will survive termination or expiration of this Agreement (or any Order Form, if applicable) in accordance with their terms, including Sections 2 (Fees), 3 (Confidentiality), 4.1 (Ownership of Customer Data), 4.2 (License to Customer Data), 5 (Representations and Warranties; Disclaimer), 6.1 (Ownership of Background IP), 6.4 (Feedback), 7 (Limitation of Liability), 8 (Indemnification), 9.4 (Effect of Termination), 9.5 (Survival), and 10 (General).

10.  General.

10.1. Entire Agreement. This Agreement, together with the Order Form, and the exhibits, schedules and other documents attached thereto set forth the entire understanding between Customer and Rygen regarding the subject matter of this Agreement and supersedes any and all prior or contemporaneous discussions, negotiations, proposals, undertakings, understandings and agreements (including any draft agreements) with respect thereto, whether written or oral.

10.2. Amendments and Waiver. No amendment or waiver of any provision of this Agreement will be valid unless signed, in the case of an amendment, by Customer and Rygen, and in the case of a waiver, by the Party against whom the waiver is to be effective. The waiver of any of the terms and conditions of this Agreement will not be construed as a waiver of any other terms and conditions hereof.

10.3. Assignment. Either Party may assign its rights and obligations under this Agreement, in whole and not in part, to its successor in connection with a merger, sale, or other transfer of all or substantially all of its assets. Any other assignment of its rights or obligations under this Agreement will require the other Party’s prior written consent. This Agreement will be binding upon, and inure to the benefit of, the Parties and their permitted successors and assigns. Any attempted assignment in violation of this Section 10.3 (Assignment) will be null and void ab initio.

10.4. Dispute Resolution. Customer agrees to negotiate with Rygen in good faith regarding any dispute, claim or controversy related to this Agreement or any Services. If good faith negotiations are unsuccessful within ten (10) business days, then the dispute will be referred to the Parties’ executive officers for further discussion. If the Parties’ executive officers cannot resolve the dispute within an additional 10 business days, then either Party may file suit in a court of competent jurisdiction in accordance with Section 10.5 (Governing Law; Jurisdiction; Venue).

10.5. Governing Law; Jurisdiction; Venue. This Agreement will be construed in accordance with the laws of the State of New York without giving effect to any choice of law rule. All disputes, suits, actions or proceedings relating to this Agreement will be brought solely in the state or federal courts located in the Borough of Manhattan, New York. Customer consents to the exclusive jurisdiction and venue of the State of New York in connection with any such dispute, suit, action or proceeding, and waive any defense of forum non conveniens. Not withstanding the foregoing, if a remedy is unavailable under the laws of the State of New York or the in the state or federal courts located in the Borough of Manhattan, New York, and is exclusively available through federal law or an alternative venue, the party will be permitted to seek remedy through such law or alternative venue. Each party hereby expressly waives any right to a trial by jury in any action or proceeding brought by or against either party in connection with this Agreement.

10.6. Interpretation. The section headings and captions of this Agreement are included merely for convenience of reference. They are not to be considered part of, or to be used in interpreting, this Agreement and in no way limit or affect any of the contents of this Agreement or its provisions. The singular number will include the plural, and vice versa. Any use of the word “including” will be interpreted to mean “including, but not limited to,” unless otherwise indicated. All references to dollars (including via the symbol “$”) will refer to the currencyUnited States dollars.10.7. Relationship of the Parties. The relationship between the Parties is that of an independent contractor, and this Agreement does not create a partnership, joint venture, agency or employer-employee relationship between the Parties. Neither Party is an agent of the other Party and is not authorized to and will not have any authority to make any representation, contract or commitment on the other Party’s behalf, or otherwise bind the other Party in any respect. Each Party’s employees and other personnel will not be, and will not be deemed to be or treated as, employees of the other Party for any purpose, including for purposes of any compensation, holidays, vacations, workers’ compensation and disability benefits, insurance or other employee benefits otherwise offered or provided by such Party, and each Party will be responsible for all amounts owed to its employees and other personnel in respect of such benefits.

10.8. Publicity. Each Party will not, without the other Party’s prior written approval, use the name or marks of, refer to, or identify such Party (or any related entity) or the subject matter of this Agreement (including any Order Form) in any publicity releases, interviews, promotional or marketing materials, public announcements, customer listings, case studies, testimonials or advertising, or provide copies of this Agreement (including any Order Form), or otherwise disclose the terms of this Agreement or any Order Form, to any third party.

10.9. Notices. All notices and consents required or permitted by this Agreement must be in writing and will be deemed given if given by hand, sent by overnight delivery service, facsimile transmission, or electronic mail (confirmed by letter sent by registered or certified mail) to the address specified in the applicable Order Form. Either Party may amend its address at any time by notice to the other Party.

10.10. Force Majeure. Neither Party will be responsible for any failure to perform its obligations under this Agreement caused by an event beyond its reasonable control, including wars, riots, natural disasters, pandemics, or any law, regulation, ordinance or other act or order of any court, government or governmental agency (but not including work stoppages or other labor disputes) (any such event, a “Force Majeure Event”), provided, that, the affected Party uses reasonable efforts to avoid or remove the causes of non-performance. Each Party will, with the reasonable cooperation of the other Party, exercise all reasonable efforts to mitigate the extent of a delay or failure resulting from a Force Majeure Event and the adverse consequences of it. If a Force Majeure Event continues for more than thirty (30) days, the Party not affected by the Force Majeure Event may terminate this Agreement upon written notice to the other Party.

10.11. Counterparts and Execution. This Agreement, including any Order Form, may be executed (including by PDF and facsimile signature) in one or more counterparts, with the same effect as if the parties had signed the same document. Each counterpart so executed will be deemed to be an original, and all such counterparts will be construed together and will constitute one Agreement.

10.12. Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect.


Exhibit A
‍
Service Level and Support Terms
These Service Level and Support Terms apply to any software-as-a-service product offering provided by Rygen to Customer as a Service (“SaaS Services”) pursuant to the General Terms and Conditions between Customer and Rygen and the applicableOrder Form (collectively, the “Agreement”). All capitalized terms not defined herein shall have the meaning given to them in the Agreement or Order Form.

1. Definitions.

1.1. "Downtime” means that substantially all of the material functions of a SaaS Service are not accessible to and fully usable by Customer, excluding (i) Scheduled Maintenance in accordance with Section 2.4 (Scheduled Maintenance), (ii) EmergencyMaintenance in accordance with Section 2.5 (Emergency Maintenance), (iii) general unavailability or outages of the Internet or other generally commercially-available telecommunications networks and other Force Majeure Events, (iv) downtime caused by Customer’s failure to comply with its obligations under the Agreement, and (v) downtime caused by a failure of Customer’s systems, networks or equipment.

1.2. “Uptime” is a percentage calculated by subtracting the total number of minutes of Downtime in an applicable month from the total number of minutes in such month, dividing that number by the total number of minutes in such month and multiplying the result by one hundred (100).

2.  Service Levels and Support.

2.1. Support Overview. Rygen will provide support for the Services in accordance with this Section. Support includes assistance with defects, general usage inquiries, and guidance regarding the Services. Support is available during Rygen’s regular business hours, which are 8:00 a.m. to 7:00 p.m. Eastern Time, Monday through Friday, which may change from time to time in Rygen’s discretion, and excluding Rygen-observed holidays (“Standard Service Support Hours”).

2.2. Uptime Commitment. Rygen will commit to providing the SaaS Services to Customer with an Uptime of 99.8% on a month-to-month basis (the “Uptime Requirement”).

2.3. Severity Levels; Notification and Response Times. Upon detection or being made aware of Downtime, Rygen will assign a severity level based on the following table and notify Customer about the outage and resolution steps. Rygen will use commercially reasonable efforts to comply with the following response and resolution times based on the severity level:

Severity Level and Description
‍
Severity 1
Catastrophic business impact. The SaaS Service is rendered completely inoperative or  unavailable, or use of material features of the SaaS Service is impossible, with no alternative available.

Severity 2
Medium business impact. An error that impacts key portions of the SaaS Service, but  a reasonable workaround exists, or Customer is able to continue to use key portions of the SaaS Service in an impaired manner.

Severity 3
Low  business impact. Business functionality is substantially available, with  minor or no impediments to the SaaS Service, or error is cosmetic in nature. The error has little-to-no impact on Customer’s access and use of the SaaS Service.

Target Response and Resolution Times

Severity 1:
Target Response: 2 hours
Target Resolution: 24 hours

Severity 2:
Target Response: 1 business day
Target Resolution: 5 business days

Severity 3:
Target Response: 5 business days
Target Resolution: Next planned update to the SaaS Service

2.4. Scheduled Maintenance. Rygen may conduct scheduled maintenance on the SaaS Services (including installing upgrades, fixes, or reconfigurations) (“Scheduled Maintenance”), provided, that, Rygen will use commercially reasonable efforts to (i) conduct such Scheduled Maintenance at off-peak times, and (ii)  to provide Customer with five (5) business days’ advance written notice.

2.5. Emergency Maintenance. Rygen may perform emergency maintenance at any time without advance notice to Customer if required to address security vulnerabilities, mitigate ongoing attacks, or prevent imminent harm to the SaaS Services, Customer or Rygen’s other customers or service providers (“Emergency Maintenance”). Rygen will notify Customer as soon as reasonably practicable regarding any required Emergency Maintenance.

3.  Service Credits.

3.1. Generally. Each failure to meet the Uptime Requirement or the response or resolution times set forth in Section 1.2 (Service Levels) will be a “Service Level Failure.”

3.2. Service Level Credits. In the event Rygen fails to meet the Uptime Requirement in any calendar month, Rygen will issue to Customer a service credit for such month equal to 1% of the monthly invoiced fees for every 0.1% by which availability falls below the Uptime Requirement, up to a maximum credit of 10%for such month (“Service Level Credit”). Any Service Level Credits will be reflected in the next invoice issued to Customer. Customer acknowledges and agrees that Service Level Credits will be Customer’s sole and exclusive remedy for any failure by Rygen to meet the Uptime Requirement.

END USER LICENSE AGREEMENT

This End User License Agreement (“EULA”), effective as of the earlier date of the date set forth on the applicable ordering document or the date Client (as defined below) accepts this EULA via any of the means contemplated in Section 2 hereof, is entered into and legally binding by and between Rygen Technologies, Inc. (“Rygen”) and the purchasing entity identified on the applicable ordering document (“Client”).

  1. Definitions.

1.1. “Software” means machine-executable object code version of Rygen’s proprietary software referenced, as installed or delivered as a service and as may be more fully described, in the applicable ordering document.

1.2. “Product(s)” means commercially released Software provided as a service, which may be more fully described in the applicable ordering document.

1.3. “Documentation” means any user instructions, manuals, and online help files regarding the use of the Product(s) that are provided to Client by or on behalf of Rygen.

1.4. “Client Content” means any data, information, sound, text, images, and other content submitted by Client to or through the Product(s).

1.5. The term “You” means Client.

1.6. Any capitalized term used but not defined herein has the applicable meaning ascribed to it in the applicable ordering document.

  1. Agreement to Terms.

PLEASE READ THIS EULA CAREFULLY. BY CHECKING THE “ACCEPT” BUTTON BELOW OR USING ANY PRODUCT, YOU ARE EXPRESSLY ACKNOWLEDGING AND AGREEING THAT: (a) YOU PURCHASED THE PRODUCT(S) LICENSE FROM AN APPROVED SOURCE; (b) YOU FULLY UNDERSTAND ALL TERMS AND CONDITIONS SET FORTH IN THIS EULA; AND (c) YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITONS SET FORTH IN THIS EULA. FOR PURPOSES OF THIS EULA, AN “APPROVED SOURCE” MEANS (a) RYGEN; OR (b) A DISTRIBUTOR, RESELLER, OR SYSTEMS INTEGRATOR AUTHORIZED BY RYGEN TO DISTRIBUTE AND/OR RESELL THE APPLICABLE RYGEN PRODUCT TO END USERS WITHIN CLIENT’S TERRITORY. IF YOU DO NOT AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS SET FORTH IN THIS EULA, YOU SHALL: (x) IMMEDIATELY CLICK THE “DO NOT ACCEPT” BUTTON; AND (Y) IMMEDIATELY DISCONTINUE YOUR USE OF THE PRODUCTS AND SOFTWARE. IF CLIENT IS A CORPORATION OR OTHER FORM OF LEGAL ENTITY AND THIS EULA IS BEING ENTERED INTO ON CLIENT’S BEHALF BY AN INDIVIDUAL, THE INDIVIDUAL ENTERING INTO THIS EULA ON CLIENT’S BEHALF HEREBY EXPRESSLY REPRESENTS AND WARRANTS THAT HE/SHE HAS THE FULL AUTHORITY TO ENTER INTO THIS EULA ON CLIENT’S BEHALF AND THE FULL AUTHORITY TO BIND CLIENT TO THIS EULA AND ALL TERMS AND CONDITIONS SET FORTH IN THIS EULA (INCLUDING, BUT NOT LIMITED TO, ALL OBLIGATIONS OF CLIENT CONTEMPLATED IN THIS EULA).

  1. Product Licenses and Restrictions.

3.1. Subject to Your compliance with the terms and conditions of this EULA and any applicable ordering document (including payment of any applicable license fees and other amounts), Rygen grants to Client a non-exclusive, non-sublicensable, non-assignable, and non-transferable license to: (a) use the Product(s), including any agreed upgrades, updates and/or bug fixes thereto or modified versions thereof; and (b) use the Documentation, in each case (a) and (b) above, solely for its own internal business needs and any other permitted use of the Product(s) (as such permitted use is mutually agreed upon in the applicable ordering document).

3.2. Client shall not and shall not permit others to: (a) copy or reproduce any Product; (b) modify or create any derivative works of any Product; (c) decompile, disassemble, decrypt, or reverse engineer (or permit, directly or indirectly, any third party, including, but not limited to, any of Client’s employees, contractors, officers, directors, members, managers, partners, shareholders, agents, advisors or representatives, to decompile, disassemble, decrypt, or reverse engineer) any Product, including, but not limited to, any portion of any Software, whether to establish the source code thereof or otherwise; (d) license, assign, transmit, sell, distribute, disclose, market, rent, lease, or transfer to any third party any portion of any Product, including, but not limited to, any portion of any Software, or use any Product, including, but not limited to, any Product, in any service bureau arrangement, facility management or third party training; (e) remove or alter any trademark, logo, copyright, or other proprietary notices, legends, symbols, or labels in or on any Product; (f) provide access to or disclose any Product to any third party; (g) use any Product to create or provide any offering or service, whether or not it is similar or competitive to any Product, including, but not limited to, connecting to existing Rygen third party trading partners as a consultant or service provider; (h) extract or use any software or content that is furnished by or on behalf of Rygen except as part of the applicable Product(s); (i) use any Product for any unlawful purpose or in violation of any applicable federal, state, local laws, rules or regulations or any foreign equivalents; (j) use any Product in connection with the storage or transmission of infringing, libelous, or otherwise unlawful or tortuous material, or in violation of any third-party privacy rights; (k) utilize any Product, or any related feature or data, to infringe, misappropriate or violate the intellectual property rights of any third party; (l) publish or disclose to any third party any performance or benchmark tests or analyses relating to any Product, except for internal use by Client; (m) make error corrections to any Product, including, but not limited to, any Software, or permit, directly or indirectly, any third party to do so, (n) interfere with or disrupt Rygen’s hosting or maintenance of the Product or Software; (o) access any portions of the Product or Rygen’s systems or data that are intended for use by Rygen and its internal personnel only; or (p) introduce to the Product or Software any virus, worm, time bomb, Trojan horse or other harmful or malicious code, file, script, agent or program.

  1. Upgrades, Modifications and Backups.

Notwithstanding any other provision set forth in this EULA, Rygen and Client hereby expressly acknowledge and agree that: (a) Client has no license or right to make or use any additional upgrades or modifications of any Product(s) unless Client, at the time of making or acquiring such upgrade or modification, already holds a valid license to the original Product and has fully and finally paid to the applicable Approved Source all applicable fees (as determined by Rygen in its sole discretion) for the upgrade or modification; (b) use of upgrades is limited to Product(s) supplied to Client by an Approved Source for which Client is the original end user or purchaser or otherwise, as determined by Rygen in its sole discretion, who holds a valid license to use the applicable Product(s) which is/are being upgraded.

  1. Term and Termination.

5.1. This EULA will be effective from the date of purchase of the applicable Product(s) and shall end upon the earlier of: (a) the end of the license term specified in the applicable ordering document, if any, and any valid renewal thereof; or (b) the termination of this EULA pursuant to Section 5.2. In the case of an evaluation or trial period provided for any Product(s) in the applicable ordering document, this EULA will terminate automatically and without notice terminate at the conclusion of such evaluation or trial period as stated on the applicable ordering document, unless Client purchases and/or licenses the applicable Product(s) prior to the conclusion of the evaluation period.

5.2. This EULA may be terminated for cause by either party in the event that the other party commits a material breach of this EULA and does not cure such breach within thirty (30) days of receipt of written notice specifying such breach and the intent to terminate. Notwithstanding the foregoing, Client’s breach of its obligations arising under Section 3 (Product License and Restrictions) or Section 13 (Confidentiality) shall be deemed a material breach of this EULA that cannot be cured and shall allow Rygen to immediately terminate this EULA. Additionally, this EULA may be terminated without cause by Rygen upon no less than ninety (90) days written notice to Client.

5.3. Upon termination of this EULA, all rights granted to Client will terminate with respect to all Product(s), including, but not limited to, all applicable Software and Documentation, and Client will immediately discontinue use of all Product(s), including, but not limited to, all Product, Documentation and all of Rygen’s Confidential Information. Upon request by Rygen, Client will within seven (7) days thereof certify in writing to Rygen that all Product(s), including, but not limited to, all Software, as well as any and all copies thereof and any and all Confidential Information of Rygen, have either been returned to Rygen or destroyed in accordance with Rygen’s written instructions.

5.4. Sections 3, 4, 5, 6, 7, 11, 12, and 13 shall survive the termination of this EULA.

5.5. Payment. Unless otherwise set forth in an applicable ordering document, Client shall pay all amounts due net thirty (30) days from the date of invoice. All fees are nonrefundable. Client will be responsible for all taxes associated with or resulting from the purchases or licensing of any Product(s) other than taxes on Rygen’s or an Authorized Source’s net income.

  1. Limited Warranty.

6.1. Rygen warrants that the applicable Product will materially conform to the applicable Documentation. Rygen shall use reasonable efforts consistent with prevailing industry standards to maintain the Product(s) in a manner which minimizes errors and interruptions in the Product(s) and shall perform any implementation services set forth in the applicable ordering document in a professional and workmanlike manner. The Product(s) may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Rygen or by third-party providers, or because of other causes beyond Rygen’s reasonable control, but Rygen shall use commercially reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.

6.2. The exclusive liability of Rygen, and the sole remedy of Client, with respect to any breach of any of the above-described warranties shall be limited to Rygen replacing or repairing, or, at Rygen’s option, refunding the purchase price or applicable license fees of the Product(s) to which the breach of warranty applies. With respect to Product, repair or replacement is limited to providing maintenance releases of the applicable Software that Rygen generally makes available from time to time.

6.3. The Product(s) contain some components subject to open source software, freeware, shareware, or similar licensing or distribution models (“Open Source Components”). Without limiting the generality of the foregoing, Rygen’s warranty obligations under this EULA do not apply to Open Source Components or other licensed third party components used or enabled through Products.

6.4. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6 ABOVE, RYGEN, ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS, HEREBY EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, COVENANTS AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING OR RELATING TO ANY PRODUCT(S) AND DOCUMENTATION, OR ANY OTHER MATERIALS OR SERVICES FURNISHED OR PROVIDED TO CLIENT UNDER THIS EULA OR OTHERWISE ASSOCIATED WITH ANY PRODUCT(S), INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL WARRANTIES THAT THE PRODUCT(S) WILL BE UNINTERRUPTED AND/OR ERROR FREE. RYGEN DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES AND ANY AND ALL WARRANTIES THAT CLIENT CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE PRODUCT(S) AND ANY OTHER SERVICES PROVIDED BY RYGEN ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. CLIENT AGREES THAT ITS USE OF THE PRODUCT(S) IS AT ITS SOLE RISK AND DISCRETION.

CLIENT HEREBY EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE PRODUCT(S), INCLUDING, BUT NOT LIMITED TO, THE SOFTWARE, IS NOT DESIGNED FOR ANY CRITICAL APPLICATIONS AND THEREFORE RYGEN PROVIDES NO WARRANTY THAT ANY PRODUCT(S) IS/ARE FIT FOR CRITICAL APPLICATIONS. “CRITICAL APPLICATIONS” MEANS THE LIFE SUPPORT SYSTEMS OR THE LIFE SUPPORT MARKET, MEDICAL APPLICATIONS, CRITICAL CARE APPLICATIONS, CONNECTIONS TO IMPLANTED MEDICAL DEVICES, COMMERCIAL TRANSPORTATION OR AVIATION, NUCLEAR FACILITIES OR SYSTEMS, OR ANY OTHER APPLICATIONS WHERE PRODUCT FAILURE COULD LEAD TO INJURY TO PERSONS, LOSS OF LIFE, OR SEVERE PROPERTY OR ENVIRONMENTAL DAMAGE. RYGEN HEREBY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY ARISING OUT OF THE USE OF ANY PRODUCT(S) IN ANY CRITICAL APPLICATIONS.

  1. Product Support.

7.1. During Client’s paid Product support subscription period (as set forth in the applicable ordering document or otherwise agreed in writing by Rygen), Rygen will provide Client with reasonable technical support services in accordance with Rygen’s standard practice.

7.2. Rygen will have no obligation to provide Product support for: (a) any modification of any Software not made by Rygen or otherwise expressly pre-approved in writing by Rygen; (b) any version of any Product running on any browser that is not supported by Rygen; (c) any Product or version of any Software that has reached its end of support life (as determined by Rygen in its sole discretion); or (d) any Product, software, system or connection with third party systems, that is not part of that Client installation of the Product as determined by Rygen in its sole discretion.

7.3. Unless otherwise agreed in writing by Rygen, the applicable Product support subscription period will be specified in the applicable ordering document. Reinstatement of lapsed Product support, if any, is subject to Rygen’s then-current support services reinstatement policy and fees in effect on the date the reinstatement is granted.

7.4. Rygen reserves the right to charge additional Product support fees at its then standard professional services rates for Product support services performed in connection with reported problems which are later determined to have been due to Client error or any third-party hardware or software. Any configuration or integration work must be separately quoted by Rygen’s professional services organization and agreed by the parties in writing before Rygen will have any obligations with respect to the same.

  1. Indemnification.

8.1. Rygen agrees that it will, at its own expense, defend all suits or proceedings instituted against Client by any third party and pay any award or damages finally assessed against Client in such third-party suits or proceedings insofar as the same are based on any third party claim that the Product(s) or any parts thereof furnished under this EULA constitute an infringement in the United States of any United States patent, copyright, or other intellectual property right of a third party; provided, however, that Client gives Rygen: (a) immediate written notice of the institution of the suit or proceedings or threat thereof, (b) sole control of the defense and settlement of such suits or proceedings; and (c) all needed information, assistance and authority to enable Rygen to do so. Notwithstanding the foregoing, Rygen will not be responsible for, and the foregoing indemnity obligation shall not apply to: (x) any use of any Product(s) in combination with any other device, product, service, process, equipment, infrastructure or material not furnished by Rygen, (y) any use of any Product(s) that is outside their intended use; or (z) any modification of any Product(s) by any person other than Rygen or otherwise expressly pre-approved in writing by Rygen. In the event that Rygen believes that any claim is likely to occur, Rygen may, at its sole option and expense, either (i) secure for Client the right to continue using such item(s), (ii) replace such item(s) with non-infringing item(s), or (iii) require the return of such item(s) and refund the sums paid therefor. THE FOREGOING STATES RYGEN’S ENTIRE LIABILITY AND OBLIGATION (EXPRESS, STATUTORY, IMPLIED OR OTHERWISE) WITH RESPECT TO INTELLECTUAL PROPERTY INFRINGEMENT OR CLAIMS THEREFOR.

8.2. Client agrees to indemnify, defend, and hold Rygen, its affiliates, and its and their directors, officers, employees, and agents harmless from all loss, liability, claims, demands, judgments, and expenses, including without limitation reasonable attorneys’ fees, arising out of or related to any Client Content, including, without limitation, any claim that the collection, transfer, storage or use of any Client Content infringes, misappropriates or otherwise violates the intellectual property rights of a third party or violates any law, rule, regulation or directive, or any unauthorized use of any Product(s) by Client or any of its employees, officers, directors, members, managers, partners, shareholders, contractors, agents, representatives, affiliates or subsidiaries. For purposes of this EULA, “unauthorized use” shall mean any use of any Product(s) that is not expressly authorized under the provisions set forth in this EULA or any use of any Product(s) that is not in strict accordance with the applicable Documentation.

  1. Limitation of Liability.

RYGEN’S TOTAL LIABILITY UNDER THIS EULA SHALL BE LIMITED TO THE AMOUNT OF MONEY PAID FOR THE SPECIFIC PRODUCT(S) FROM WHICH THE CLAIM AROSE. IN NO EVENT WILL RYGEN BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFIT, LOSS OF DATA, LOSS OF USE, BUSINESS INTERRUPTION, SECURITY BREACH, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES), HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, AND WHETHER OR NOT RYGEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS IN ADVANCE. THIS EXCLUSION INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD-PARTY CLAIMS AGAINST CLIENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. Client hereby expressly acknowledges and agrees that Rygen has set its prices for the Product(s) and entered into this EULA in reliance upon the disclaimers of warranty set forth in Section 6 of this EULA and the limitations of liability set forth in this Section 9 of this EULA, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties.

  1. Confidentiality.

“Confidential Information” means any and all information related to a party’s business that is labeled or identified as “confidential” or “proprietary” or otherwise is of such a type or disclosed in such a way that a reasonable person would understand that the information disclosed is confidential or proprietary, including without limitation software, source code, specifications, trade secrets, development plans, technical information, business forecasts, and strategies. Without limiting the foregoing, the Product(s) and the Documentation are the “Confidential Information” of Rygen. Each party agrees to hold the other party’s Confidential Information in strict confidence, not to disclose such Confidential Information to any third parties, except as described below, not to use any Confidential Information except for the purposes of this EULA, and otherwise protect Confidential Information by using at least the same degree of care (and, in any event, not less than a reasonable degree of care) as it uses to protect its own proprietary information of similar importance. Each party may disclose the other party’s Confidential Information to its responsible employees and contractors with a bona fide need to know, but only to the extent necessary to carry out the purposes of this EULA, and only if such employees and contractors are subject to a nondisclosure agreement that is at least as protective as this EULA. The restrictions set forth in this section will not apply to any Confidential Information that the receiving party can demonstrate (a) was known to it prior to its disclosure by the disclosing party; (b) is or becomes publicly known through no wrongful act of the receiving party; (c) has been rightfully received from a third party authorized to make such disclosure without restriction; or (d) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information. The parties agree that a breach of this section may cause irreparable damage which money cannot satisfactorily remedy and therefore, the parties agree that in addition to any other remedies available at law or hereunder, the disclosing party will be entitled to seek injunctive relief for any threatened or actual disclosure by the receiving party.

  1. Proprietary Rights.

Product(s) and Documentation contain Rygen’s proprietary information that is protected to the maximum extent by applicable intellectual property and other laws. There is no implied license, right, or interest granted to Client in any copyright, patent, trade secret, trademark, invention, or other intellectual property right under this EULA, and Rygen reserves all proprietary rights not expressly granted herein.

  1. Government Rights.

The Product(s) are “commercial items” as that term is defined at 48 C.F.R. 2.101; the Software and Documentation consists of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Product(s) and any other software and documentation covered under this EULA with only those rights set forth herein. Accordingly, if Client is an agency, department, employee, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Product, including technical data or manuals, is restricted by the terms, conditions, and covenants contained in this EULA.

  1. Miscellaneous.

13.1. Security Responsibilities. Client acknowledges and agrees that it is solely responsible for maintaining and protecting all aspects of any network, systems, and data (including any Personal Information) maintained by Client. “Personal Information” means individually identifiable information from or about an individual consumer including, but not limited to: (a) a first and last name or first initial and last name; (b) a home or other physical address, which includes at least a street name and name of city or town; (c) an email address; (d) a telephone number; (e) a Social Security number; (f) credit and/or debit card information, including number, expiration date, security code, and/or track data; (g) date of birth; or (h) driver’s license number.

13.2. Rygen Suppliers and Licensors. Any release, disclaimer, or limitation of Rygen’s liability or damages pursuant to this EULA shall be construed, in addition to Rygen’s benefit, also to the benefit of Rygen’s suppliers, licensors, employees, and contractors and, without limiting any other defenses that such suppliers, licensors, employees and contractors may have. Client hereby expressly agrees and covenants to release such third parties from liability or damages in accordance with such release, disclaimer, or limitation of liability or damages to the same extent that such provisions apply to Rygen. The Product(s), including, but not limited to, any Software, may include software licensed from third parties, and such third-party software may be subject to third party terms and conditions, including as may be specified in licenses included in the “Licenses” directory within the Product(s). Client hereby expressly represents and warrants that it has read such other licenses in their entirety and fully agrees to be bound by the terms of any applicable third party terms and conditions.

13.4 Access and Use of Client Content. Rygen may use and reproduce Client Content as necessary to provide, operate, maintain and support the Product(s) provided to Client, and for any further purposes approved by Client (including as set forth in the applicable ordering document). Client will secure for Rygen the right to use and reproduce Client Content, including any Personal Information therein, to the extent necessary to provide, operate, maintain and support the Product(s), without creating any obligations for Rygen beyond those set forth in this EULA. In addition, Rygen may generate and use usage patterns, trends, and other statistical data derived from use of the Product(s) (but not Client Content itself) for the purposes of developing, providing, operating, maintaining, or improving the Products and other Rygen products and services.

13.3. Governing Law/Dispute Resolution. This EULA will be governed by and construed under the laws of the State of South Carolina without regard to its conflict of laws provisions. The federal and state courts South Carolina will have exclusive jurisdiction and venue to adjudicate any dispute arising out of or related to this EULA. Notwithstanding the foregoing, Client hereby expressly acknowledges and agrees that the breach or attempted breach of its obligations hereunder related to any Product(s) or Rygen’s Confidential Information shall cause irreparable injury to Rygen for which money damages would not be an adequate remedy and that in such event Rygen shall be entitled to equitable relief to protect its interests, including, but not limited to, injunctive relief, in any court of competent jurisdiction.

13.4. Entire Agreement. This EULA sets forth the entire agreement and understanding of the parties relating to the subject matter hereof and supersedes all prior discussions, proposals, and understandings between them. No modification of or amendment to this EULA, nor any waiver of any rights under this EULA, will be effective unless set forth in writing signed by authorized representatives of both parties hereto. Client hereby expressly acknowledges and agrees that, without limiting the generality of the foregoing, this EULA wholly supersedes the terms of any Client form of purchase order, acknowledgment, or other business forms notwithstanding Rygen’s acceptance or acknowledgment thereof or to any of the same and that no so such Client form of purchase order, acknowledgment or other business forms shall have any force or effect unless otherwise expressly agreed in writing by Rygen via a written amendment to this EULA.

13.5. Assignment. Client may not assign this EULA or any of its rights and/or obligations under this EULA without Rygen’s prior written consent. Rygen shall have the right to assign this EULA and/or any of its rights and/or obligations under this EULA to any of its affiliates or subsidiaries or to any successor to its business or assets to which this EULA relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise.

13.6. Severability. If any provision of this EULA is held to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this EULA will otherwise remain in full force and effect and enforceable.

13.7. Waiver. The failure of either party to enforce its rights under this EULA at any time for any period will not be construed as a waiver of such rights.

13.8. Notices. Any notices or communication under this EULA will be in writing and will be either (a) hand delivered, (b) sent by registered or certified mail return receipt requested, or (c) sent by nationally recognized express courier to the receiving party’s address set forth on the applicable ordering document, or such other address as a party hereto may in the future specify to the other party.

13.9. Client Records. Upon reasonable notice, Rygen may conduct a reasonable audit of Client’s Product environment and relevant records to confirm Client’s use of Product(s), including, but not limited to, any Software, is in accordance with the terms and conditions of this EULA. Any such audit shall be conducted during regular business hours and shall not unreasonably interfere with Client’s business activities. Client shall reasonably cooperate in any such audit. In the event such audit discloses non-compliance with this EULA, Client shall promptly pay to Rygen the appropriate license fees (as determined by Rygen in its sole discretion), plus the reasonable cost of conducting the audit.