GENERAL TERMS AND CONDITIONS (“GTC”)

BY SIGNING AN ORDER FORM, ISSUING A PURCHASE ORDER, AND/OR ACCESSING OR USING THE PRODUCTS AND/OR SERVICES, CUSTOMER ACCEPTS THESE GTC. IF CUSTOMER DOES NOT AGREE TO THESE TERMS AND CONDITIONS, CUSTOMER MAY NOT USE THE PRODUCTS AND/OR SERVICES. CUSTOMER AGREES THAT THE AGREEMENT IS ENFORCEABLE AS ANY WRITTEN AGREEMENT SIGNED BY CUSTOMER.

These GTC are entered into by and between GuardSquare NV, a Belgian company, or Guardsquare Inc., a US company, as identified on the applicable Order Form (referred to herein as “Guardsquare”) and the entity that procures Products and/or Services from Guardsquare as identified on the applicable Order Form (“Customer”). These GTC are inclusive of the Appendices attached hereto and incorporated herein by reference. In the event of an inconsistency between the GTC and its Appendices, the terms and conditions of the Appendices shall prevail as they apply to those particular Products and/or Services.

Appendix A: Terms for XTD On-Premise Products
Appendix B: Terms for Secure Cloud Subscription Services
Appendix C: Definitions

Customers who purchased Products or Services through a Guardsquare authorized reseller also need to agree to these GTC – which are concluded directly between the Customer and Guardsquare – to be able to access and use the Products and Services. However, article 14 contains certain deviating and additional terms and conditions, specific to those Customers.

1.0 Order Forms, Fees and Payment Terms.

1.1 Order Forms. Customer may order Products and/or Services by signing an Order Form prior to the expiration date listed on such Order Form or a later date if agreed in writing by Guardsquare. If Customer elects to issue a Purchase Order, such Purchase Orders shall be governed by the terms and conditions of the Order Form and these GTC. Any terms on Customer’s Purchase Orders that are in addition to, or different from, the terms of these GTC are void and shall have no force or effect. If Customer submits a Purchase Order, then Customer shall issue the Purchase Order within two (2) business days from date of execution of the Order Form, failure of which shall result in Guardsquare validly issuing the relevant invoice without having to reference the Purchase Order number. In the event of an inconsistency between contract documents, the terms set forth in an agreement duly signed by both parties shall govern, followed by the Order Form(s) and then these GTC. Notwithstanding anything to the contrary herein, all references herein or in any Order Form(s) to “sale” or “purchase” of any software product means only the sale or purchase of a license to use such software product pursuant to the Agreement.

1.2 Fees. The fees for the Products and Services are set forth in Order Forms, as may be executed from time to time by Guardsquare and Customer.

1.3 Invoicing and Payment for Products and Services.

1.3.1 (a) One-Time Fees. All One-Time Fees for Products and Services shall be invoiced upfront in full, upon Order Form signature, or as otherwise agreed in writing by Guardsquare.

(b) Recurring Fees. All Recurring Fees for Products and Services shall be initially invoiced upon Order Form signature or as otherwise agreed in writing by Guardsquare and, thereafter, on the Billing Period set forth in the Order Form. The Unit Type, Unit Type Rate, and Minimum Contracted Quantity (“MCQ”) or Quantity (as applicable) shall be set forth in the Order Form.

(i) Reporting. If the Product or Service is licensed with an MCQ, then Customer shall no later than ten (10) calendar days at the end of each calendar quarter, provide Guardsquare with a quarterly report setting forth the highest quantity of Active XTD Devices or Transactions (as applicable) per calendar month. In the event of a discrepancy between the Customer’s quarterly report and data collected by Guardsquare, then Guardsquare shall notify Customer of the discrepancy and the data gathered by Guardsquare shall prevail.

(iI) MCQ Overage Fee. Unless otherwise agreed by the parties as set forth in the applicable Order Form, Guardsquare shall, if applicable, invoice Customer an additional monthly MCQ overage fee on a quarterly basis in arrears. Each monthly MCQ overage is calculated as the difference between: (i) the highest number of Active XTD Devices in each month; and (ii) the monthly MCQ for the Active XTD Devices. Unless otherwise stated in the Order Form, the monthly overage fee is charged at 1.5 times the monthly MCQ Unit Type Rate specified in the Order Form. The total MCQ overage fee payable for each quarter is calculated by adding together each monthly MCQ overage fee during that calendar quarter.

Illustrative Example of MCQ Overage Fee:

Monthly MCQ Active XTD Device Rate	$1.00
Monthly MCQ – Active XTD Devices	100,000
Highest Quantity of Active XTD Devices in Month	101,000
Monthly Overage – Active XTD Devices	1,000
Monthly Overage – Fee	$1,500 (1,000*$1.5)

(d) Royalty Fees. In the event payment of royalty fees are specified in the Order Form, Customer shall, on or before the tenth (10th) calendar day following each calendar quarter after the commencement of the Subscription Period, furnish to Guardsquare a statement, certified by a duly authorized person, setting forth the amount of royalties based on the method of calculation set forth in the Order Form. Royalty fees shall be invoiced quarterly upon receipt of each royalty report and payable net thirty (30) days from the invoice date.

(c) Renewal Fees. At the end of the initial Subscription Period as set forth in the Order Form, the Subscription Services and/or Products licensed on a subscription basis shall auto-renew for subsequent period(s) for the same length of time as the initial Subscription Period (each a “Renewal Period”), unless and until either party gives the other party notice of its intent not to renew at least ninety (90) days before the end of the initial Subscription Period or any Renewal Period thereafter. Notwithstanding, in the event that the initial Subscription Period is greater than thirty-six (36) months, the subsequent Renewal Period shall be capped at thirty-six (36) months. At the end of the initial Subscription Period or during any Renewal Period thereafter, unless otherwise agreed by the parties in writing, the Subscription Fees shall automatically increase per year by the greater of (i) if the Order Form is with Guardsquare Inc.: six percent (6%); or the then current United States Consumer Price Index (for Order Forms or invoices in US dollars) or (ii) if the Order Form is with GuardSquare NV: the Belgian Consumer Price Index (for Order Forms or invoices in Euros), which amount may be calculated on a compounded basis for years in which the Subscription Fees were not increased.

1.3.2 Payment Term. Payment is due and payable within the Payment Term set forth in the Order Form. If the Order Form does not state the Payment Term, payment is due and payable thirty (30) days following the invoice date, unless otherwise expressly agreed in a written agreement signed by a duly authorized Guardsquare representative.

1.3.3 Payment Method. All payments made under the terms of the Agreement shall be made in the currency denominated in the Order Form and shall be made by electronic fund transfer. If Guardsquare finds the credit status of a Customer (or, in the case of a reseller, the reseller or the end user) to be deficient or there is a lack of credit information available, Guardsquare reserves the right to require prepayment or other assurance of payment prior to delivery of Products and/or commencement of Services.

1.3.4 Non-cancelable Order Forms. In the event Customer terminates an Order Form other than as contractually permitted, or Guardsquare terminates an Order Form due to Customer’s breach of the Agreement or Order Form, or for cause related to or attributable to the Customer, Guardsquare will invoice and, Customer agrees to pay to Guardsquare within thirty (30) days of the invoice date, a termination fee equal to the One-Time Fees (if unpaid) and one hundred percent (100%) of the Recurring Fees (if unpaid) for the remaining term of the Subscription Period, based on the Unit Type Rate in effect at time of termination. This Section shall survive termination of the Agreement and shall be in addition to any other rights or remedies hereunder.

1.4 Late Payment Charge. In the event of a partial or total non-payment of any undisputed invoice when due, Guardsquare reserves the right to revoke, disable, and/or not enable unpaid licenses and/or suspend Product deliveries and Services until full payment of the fees for the Products and/or Services. In addition to its other rights and remedies hereunder, including the right to terminate for the Customer’s breach, Guardsquare shall charge and Customer agrees to pay, interest at the rate of one and one-half percent (1.5%) of the unpaid amount of any invoice per month (or fraction thereof), but not to exceed the maximum rate permitted by law, from the due date of the invoice until the date paid for any invoice not timely paid in accordance with the terms of the Agreement. Failure to take Delivery of Products and/or Services shall not relieve Customer from its payment obligations under this Section 1. Customer agrees to pay all necessary collection costs of amounts past due, including reasonable attorney’s fees and costs.

1.5 Invoice Dispute. If the Client disputes any portion of an invoice, the Client shall notify Guardsquare without undue delay and in any event within the payment term of the nature of any such dispute, the basis for the Client’s dispute and the amount involved, together with any appropriate information supporting Client’s position, failure of which shall result in the invoice being deemed accepted by the Client. The undisputed portion of the invoice shall be paid as set forth herein.

1.6 Taxes. Customer shall, in addition to the amounts set forth in the applicable Order Form(s), pay all applicable sales, use, transfer, or other taxes and all duties, whether national, state, or local, however designated, that are levied or imposed by reason of the transaction contemplated under the applicable Order Form(s), excluding income taxes on the net profits of Guardsquare. Customer shall reimburse Guardsquare for the amount of any such taxes or duties paid or incurred directly by Guardsquare as a result of the transaction(s) described in the applicable Order Form(s). If Customer is required by law to make any deduction or to withhold from any sum payable under the Agreement, Customer will pay to Guardsquare such additional amounts as is necessary in order that the net amounts received by Guardsquare after all deductions and withholding shall not be less than such payments would have been in the absence of such deductions or withholding.

2.0 Privacy and Data Protection.

2.1 Guardsquare shall maintain and protect Customer’s Data in accordance with security measures designed to protect such data and in accordance with all applicable laws, including but not limited to applicable privacy and data protection laws. In performing the Agreement, Guardsquare may obtain Personal Data from or on behalf of Customer. Guardsquare and Customer agree to the management of Personal Data as set forth below. Customer acknowledges that Customer is solely responsible for any and all of Customer’s Data that Customer elects to transmit or process through use of the Products and/or Services. Notwithstanding the above, the parties agree that in the event Personal Data is subject to the protection of the General Data Protection Regulation (“GDPR”), then the Data Processing Agreement (“DPA”) available at https://protectmyapp.com/data-processing-agreement/ shall govern the processing of Personal Data by Guardsquare on Customer’s behalf.

2.2 As between Guardsquare and Customer, Customer exclusively owns all rights, title, and interest in and to all Customer’s Data. During the Term of the Agreement, Customer hereby grants to Guardsquare and its licensors a non-exclusive, worldwide, royalty-free right to use, store, copy, transmit, modify, create derivative works of, sublicense and display the Customer Data to the extent necessary to provide Products and/or Services under the Agreement, to respond to service or technical problems, to improve Guardsquare products and services, to confirm compliance with the terms of the Agreement, or otherwise at the Customer’s direction, request or as expressly permitted. Customer further grants to Guardsquare and its licensors a non-exclusive, worldwide, royalty-free, perpetual, unlimited right to use, copy, transmit, modify, create derivative works of, sublicense, and display Aggregated Data, which rights shall survive the termination of the Agreement. Customer represents and warrants that (a) it has all right, power, and the authority necessary for the collection, use, and processing of the Customer Data as contemplated by the Agreement; (b) Customer has acquired all the necessary consent required for use of the Customer Data, including by Guardsquare, under the Agreement; and (c) the Customer Data does not contain any (i) bank, credit card, or financial account numbers or login credentials, (ii) social security number, tax identification, driver’s license number, or other government issued identification numbers, or (iii) any health records or information. Customer is solely responsible for the accuracy, content, and legality of all Customer Data.

2.3 Limitation of Use. Customer agrees and hereby authorizes Guardsquare to access or use Personal Data collected from or on behalf of Customer only to perform its obligations under the Agreement or as otherwise instructed by Customer.

2.4 Disclosures of Information. Guardsquare will only transfer Personal Data (i) as required to perform the Agreement; (ii) where such disclosure or transfer is required by any applicable law, regulation, or governmental authority; or (iii) as otherwise requested by Customer. Customer acknowledges and agrees that (a) Guardsquare’s affiliates may be retained as subcontractors; (b) Guardsquare and its affiliates may engage third-party subcontractors in connection with the performance of the Agreement; and (c) Guardsquare may transfer Personal Data to sub-processors based in the U.S. in performing the Agreement.

2.5 Information Security. Guardsquare will:

implement and maintain appropriate administrative, technical, and physical safeguards to protect against anticipated threats to the confidentiality, integrity, and security of Personal Data processed by it on behalf of the Customer; and
notify Customer, to the extent permitted by law, within a commercially reasonable period whenever Guardsquare reasonably believes that there has been a Security Incident.

2.6 Termination. Upon termination or expiration of the Agreement, Guardsquare will cease processing the Personal Data and, subject to Section 2.2 above, Guardsquare will return to Customer all such Personal Data, or securely destroy the same, with the exception of back-up data, which will be deleted in accordance with Guardsquare’s retention schedule.

3.0 Intellectual Property Ownership.

Guardsquare (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Products, Services, including any and all enhancements, enhancement requests, suggestions, modifications, extensions and/or derivative works thereof. The Agreement does not convey to Customer any rights of ownership in or related to the Services, Products, or the Intellectual Property Rights owned by Guardsquare. The only rights Guardsquare grants Customer are those rights expressly stated in this Agreement and/or the applicable Order Form. All rights not expressly granted to Customer under the Agreement are reserved by Guardsquare. The Guardsquare name, the Guardsquare logo, and the Products and Services names are trademarks of Guardsquare or third parties, and no right or license is granted to use them. Customer hereby acknowledges the right of Guardsquare’s licensors to enforce their rights hereunder as a third-party beneficiary of the Agreement.

Customer agrees that Guardsquare and its affiliates may use Customer’s name and logo and reference the technical solution licensed from Guardsquare in a press release, in marketing materials, on Guardsquare’s website and in other media, and in customer and investor presentations. Guardsquare will not so use or disclose any Customer Confidential Information or change Customer’s name or logo in any manner.

4.0 Third Party IPR Standards Notice. Certain Products or portions thereof may (i) require licenses from third parties claiming intellectual property rights covering the use or implementation of such Products or (ii) be based on industry recognized standards or software programs published by industry recognized standard bodies and certain third parties may claim to own intellectual property rights that cover implementation or use of those standards. Customer shall be responsible to obtain any such license as may be needed and notwithstanding anything to the contrary herein, no such license is provided by Guardsquare.

5.0 Professional Services.

Guardsquare will provide the Professional Services as set forth in the applicable SOW. Unless otherwise stated in a SOW, Guardsquare shall retain all right, title and interest in and to any resulting deliverables. Customer may use the deliverables, identified as such in the SOW in accordance with these GTC. Professional Services shall be subject to such additional terms and conditions as may be included in the relevant SOW.

6.0 Termination.

6.1 Term. The term of the Agreement means the period commencing on the Effective Date and remaining in effect as long as Customer has a valid and effective license for the Products and/or Services, which has not been terminated pursuant to Section 6.2 of the GTC.

6.2 Termination for Cause. The Agreement may be terminated by a party for cause immediately upon the occurrence of any of the following events:

(i) on written termination notice to a breaching party that has breached any provision of the Agreement and failed to cure such breach within thirty (30) days of receiving notice specifying such breach, provided however, that either party may terminate the Agreement immediately by written notice to the other party in the case of (a) a breach or threatened breach of Section 12.0 (Confidentiality) by the non-terminating party; or (b) an infringement or threatened infringement of the terminating party’s intellectual property rights; or

(ii) the other party ceases to do business or otherwise terminates its business operations without a successor; or

(iii) the other party seeks protection under any bankruptcy, receivership, creditors arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against the other party and not dismissed within one hundred and twenty (120) days.

6.3 Termination of Agreement. Upon the expiration or termination of the Agreement, (i) Guardsquare shall have no further obligation to provide any Products or Services to Customer; and (ii) Customer shall have no right to any refund of any amounts paid hereunder, except in the event the Agreement was terminated by the Customer for breach by Guardsquare. If the Agreement is terminated by Customer due to Guardsquare’s breach, Customer shall be entitled to a pro-rata refund of any pre-paid fees, for any period following the date of termination. In the event the Customer terminates the Agreement early for convenience or other than as contractually permitted, or if Guardsquare terminates the Agreement for the Customer’s breach or cause, fees for the remainder of the Agreement term shall remain payable by the Customer without any refund obligation on Guardsquare.

6.4 Suspension of Products and Services. Without prejudice to Guardsquare’s rights under Section 6.2, if Customer breaches the Agreement and fails to cure such breach within thirty (30) days following receipt of written notice, Guardsquare shall have the right to revoke or disable licenses and/or suspend some or all Product deliveries and Services until Customer cures such breach.

7.0 Indemnification.

This Section 7.0 states Guardsquare’s total responsibilities, liabilities, and remedies to Customer for any actual or alleged infringement of any Intellectual Property Rights of any third party.

7.1 Indemnification by Guardsquare. Guardsquare shall defend and indemnify the Customer as specified herein against any claims brought by third parties to the extent such claim is based on an infringement of the Intellectual Property Rights of such third party by the Products or Services and excluding any claims to the extent resulting from (i) the unauthorized use of the Products or Services, (ii) the modification of the Products or Services other than by Guardsquare, (iii) failure to use the most recent version of the Products or Services made available to the Customer, or failure to integrate or install any corrections to such Products or Services issued by Guardsquare, if Guardsquare indicated that such update or correction was required to prevent a(n) (potential) infringement, (iv) use of the Products or Services in combination with any non-Guardsquare products or services, (v) excluded third-party components or components with respect to which Guardsquare has informed Customer or has published in the Product or Services Documentation a statement that a separate license has to be obtained and/or that no implied license is granted, to the extent any such claim arises from Customer’s manufacture, use, sale, offer for sale, importation or other disposition or promotion of the Product or Service after Guardsquare informed Customer or has published such statement; or (vi) the Products or Services having been developed to the Customer’s design, specifications or instructions or incorporating data or other materials provided by or on behalf of the Customer.

Such indemnity obligation shall be contingent on the following: (i) Guardsquare is given prompt written notice of any such claim; (ii) Guardsquare is granted sole control of the defence and settlement of such a claim; (iii) upon Guardsquare’s request, the Customer fully cooperates with Guardsquare in the defence and settlement of such a claim, at Guardsquare’s expense; and (iv) the Customer makes no admission as to Guardsquare’s liability in respect of such a claim, nor does the Customer agree to any settlement in respect of such a claim without Guardsquare’s prior written consent. Provided these conditions are met, Guardsquare shall indemnify the Customer for the damages and costs incurred by the Customer as a result of such a claim, as awarded by a competent court of final instance or as agreed to by Guardsquare pursuant to a settlement agreement (which settlement must fully release the Customer from any financial liability or other obligation in respect of the claim), it being acknowledged and agreed that Guardsquare is not required to spend more than EUR 500.000,00 pursuant to its indemnity obligations hereunder (including on attorneys’ fees, settlements, judgments, court costs and cost reimbursement).

7.2 Remedy(s) for Enjoinment. In addition to indemnification by Guardsquare under Section 7.1, if the use of the Product (excluding hardware) or Services is permanently enjoined, Guardsquare shall use commercially reasonable efforts at its expense and option to: (i) obtain all rights required to permit the Customer’s continued use of the Product and/or Services in accordance with the Agreement; or (ii) modify or replace such Product and/or Services to make it non-infringing; provided that any such replacement or modified Product and/or Services is functionally equivalent to the Product. If neither of the foregoing are reasonably commercially practicable, Guardsquare may terminate the applicable Product license and/or Services, and, if so, will provide Customer a pro rata refund of any pre-paid fees related to such Product and/or Services based on the remainder of the pre-paid period as of the effective date of such termination.

7.3 Indemnification by Customer. Customer shall defend, indemnify and hold harmless Guardsquare, and its officers, directors, employees and agents (the “Guardsquare Indemnitees”), from and against all suits, claims, demands, losses, liabilities, damages and expenses (including reasonable attorneys’ fees and costs) that the Guardsquare Indemnitees may suffer or incur in connection with any third-party claim arising from (i) Customer’s breach of the Agreement; (ii) Guardsquare’s compliance with Customer’s designs, specifications or instructions with respect to the Products; (iii) modifications of the Products by any party other than Guardsquare after delivery by Guardsquare; (iv) any third party privacy claims or security violations based on subscribing to and use of Customer’s content distribution network, (v) any third party claims arising from, related to or in connection with any violation by Customer of the Communications Decency Act of 1996, 47 U.S.C. Section 223; and (vi) any claims filed by third parties alleging patent, copyright, trade secret or trademark infringement resulting from or in connection with the use, manufacture, assembly or distribution of the Customers Product incorporating Product by Customer, its Distributors or its End Users in any country, provided that: (i) Customer must be promptly notified of such claim in writing; (ii) Customer controls the defense or settlement of any such claim; (iii) Customer is given all necessary authority, information and assistance with respect to the claim by Guardsquare at Customer’s reasonable expense; and (iv) Guardsquare shall have no authority to settle any claim on behalf of Customer without first obtaining Customer’s written permission.

8.0 Disclaimer of Warranties.

EXCEPT FOR ANY WARRANTIES AS MAY BE EXPRESSLY SET FORTH IN THE AGREEMENT, THE PRODUCTS AND SERVICES ARE PROVIDED “AS-IS,” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND AND GUARDSQUARE AND ITS LICENSORS MAKE NO OTHER WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO ANY PRODUCT, SERVICES OR RELATED MATERIALS PROVIDED UNDER THE AGREEMENT. WITHOUT LIMITING THE FOREGOING, GUARDSQUARE DOES NOT WARRANT THAT ANY PRODUCT OR SERVICES SHALL MEET CUSTOMER’S REQUIREMENTS OR THAT ANY PRODUCT OR SERVICES WILL BE UNINTERRUPTED, OR ERROR FREE, OR THAT ANY CONTENT, INCLUDING CUSTOMER DATA OR THIRD-PARTY CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. GUARDSQUARE DOES NOT WARRANT OR ASSUME RESPONSIBILITY FOR THE ACCURACY, TIMELINESS, COMPLETENESS OF ANY INFORMATION, RESULTS, INDICATIONS, ADVICE, PROPOSED ACTIONS, TEXT, GRAPHICS, LINKS OR OTHER ITEMS CONTAINED WITHIN, RELATED TO, OR PROVIDED THROUGH THE GUARDSQUARE PRODUCTS AND SERVICES, AND GUARDSQUARE MAKES NO WARRANTIES IN RELATION TO THE SECURITY OR STABILITY OF THE SERVICES OR PRODUCTS OR THE CUSTOMER’S PROTECTED APPLICATIONS.

9.0 Limitation of Liability.

TO THE MAXIMUM EXTENT ALLOWED BY LAW, IN NO EVENT SHALL GUARDSQUARE OR ITS LICENSORS BE LIABLE FOR (i) ANY LOST REVENUE OR PROFITS, OPPORTUNITY LOSS, LOSS OF ANTICIPATED SAVINGS, LOSS OF DATA, LOSS OF USE OF COMPUTER SYSTEMS OR ASSOCIATED EQUIPMENT, COST OF CAPITAL, LOSS OF BUSINESS, COST OF SUBSTITUTE FACILITIES, PRODUCTS, SERVICES OR EQUIPMENT, DOWNTIME COSTS, REPUTATIONAL DAMAGE, OR CLAIMS OF CUSTOMER’S CUSTOMERS FOR ANY OF THE FOREGOING DAMAGE, WITHOUT REGARD TO HOW SUCH DAMAGES ARE CATEGORIZED; OR (ii) ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THE AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF GUARDSQUARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

CUSTOMER ACKNOWLEDGES THAT THE AMOUNTS PAYABLE HEREUNDER ARE BASED IN PART ON THESE LIMITATIONS, AND FURTHER AGREES THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.

TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAWS, IN NO EVENT SHALL GUARDSQUARE’S LIABILITY TO CUSTOMER OR ANY OTHER THIRD PARTY FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO THE SERVICES, THE PRODUCTS, THE DOCUMENTATION OR OTHERWISE RELATING TO THE AGREEMENT, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, (i) IN THE AGGREGATE PER ORDER FORM CONTRACT YEAR, EXCEED THE AMOUNT OF THE FEES PAID BY CUSTOMER TO GUARDSQUARE UNDER THE ORDER FORM UNDER WHICH THE LIABILITY AROSE DURING THE ORDER FORM CONTRACT YEAR IN WHICH THE EVENT GIVING RISE TO SUCH LIABILITY AROSE; AND (ii) IN THE AGGREGATE UNDER AN ORDER FORM, THE SUM OF ONE HUNDRED THOUSAND DOLLARS ($100,000.00). THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.

10.0 Force Majeure.

Neither Party shall be liable for delays or any failure to perform under the Agreement, other than an obligation to pay money, due to causes beyond its reasonable control (a “Force Majeure Event”), including, but not limited to, war (including civil war), terrorism, riots, embargoes, acts (whether sovereign or contractual) of civil or military authorities, acts of any government, fires, floods, earthquakes, explosions, the elements, epidemics, quarantine restrictions, and strikes. In the event of a delay or failure to perform due to a Force Majeure Event, the affected party shall promptly notify the other party in writing of such delay or failure and its time for performance shall be extended for the duration of the Force Majeure Event or for such longer period as reasonably required as reasonably substantiated by the affected party.

11.0 Sub-contracting; Assignments.

11.1 Sub-contracting. Guardsquare shall have the right to subcontract its performance hereunder in the normal course of business without obtaining Customer’s written consent, but such subcontracting shall not relieve Guardsquare of any obligation or responsibilities under the Agreement.

11.2 Assignment. Guardsquare may assign or delegate the Agreement. Customer may not assign or delegate the Agreement or any of its rights or obligations hereunder, without Guardsquare’s prior written consent, which shall not be unreasonably withheld or delayed, provided, however, that Customer may assign the Agreement to any successor (whether by merger, consolidation, sale of assets or otherwise) of all or substantially all of its business or assets with written notice to Guardsquare. Any purported assignment or delegation of the Agreement in violation of this Section 11.2 shall be null and void and of no effect. Subject to the preceding sentence, the Agreement shall bind each party and its permitted successors and assigns.

12.0 Confidentiality.

12.1 The terms and conditions of a mutual written non-disclosure agreement executed by Guardsquare and Customer shall apply to all confidential information shared by the parties and is hereby incorporated herein by this reference. For the avoidance of doubt, the parties hereby expressly agree that the terms and conditions relating to confidential information shall continue for the Term of the Agreement and for a period of three (3) years thereafter, notwithstanding a shorter duration set forth in the non-disclosure agreement. In the event that the parties have not executed a mutual non-disclosure agreement, the following provisions shall apply:

12.1.1 Disclosing Confidential Information. Each party agrees to hold the Confidential Information of the other party in strict confidence and to protect it from disclosure with the same degree of care that it uses to protect its own confidential information of like importance but not less than a reasonable degree of care. Each party shall use the Confidential Information of the other party only as necessary to perform its duties and satisfy its obligations hereunder and shall limit the disclosure of the Confidential Information to those of its and its affiliates’ employees, consultants, officers, directors and professional advisers (“Representatives”) who have a reasonable need to know, who are under a duty of confidentiality no less restrictive than the obligations set forth herein and have executed a non-disclosure agreement with the receiving party. The receiving party shall be responsible for a breach of confidentiality hereunder by its Representatives.

12.1.2 Unauthorized Disclosures. The receiving party shall promptly notify the disclosing party upon becoming aware of any unauthorized disclosure or use of its Confidential Information and provide any assistance the disclosing party may reasonably require to retrieve the information and protect it from any further use or distribution. If any Confidential Information must be disclosed to a third party by reason of legal, accounting, or regulatory requirements beyond the reasonable control of the receiving party, that party shall to the extent legally permitted promptly notify the disclosing party in order to permit the disclosing party (at its own expense) to seek an appropriate protective order in a timely manner.

12.1.3 Return of Confidential Information. Upon termination of the Agreement or at the request by the disclosing party, the receiving party shall return all copies of Confidential Information in its possession or certify in writing to the disclosing party that its Confidential Information has been destroyed. Section 12 shall survive any termination, cancellation, or expiration of this Agreement for a period of three (3) years. However, notwithstanding anything to the contrary in this Agreement, Confidential Information related to source code shall remain confidential for the entire period during which such source code is protected by applicable intellectual property rights, and trade secrets shall remain subject to the confidentiality obligations hereunder for as long as they legally qualify as trade secrets.

12.2 Feedback. If Customer submits any comments, questions, suggestions, opinions, ideas for any current or future product or services of Guardsquare, or features or functionality therein, or other feedback relating to Guardsquare’s products and/or services (collectively “Feedback”), Guardsquare and its licensors may freely use and exploit such Feedback in any manner in connection with any products or services of it or its affiliates, without attribution or other obligation or compensation to Customer or any third party. Guardsquare shall have no obligation of confidentiality with respect to Feedback. Guardsquare will not publicly associate such Feedback with Customer without Customer’s consent.

13.0 Miscellaneous.

13.1 Internal escalation of disputes. Except as set forth in Section 13.3, any and all disputes hereunder shall first be escalated to the parties’ respective chief executive officers or their delegates who shall attempt its amicable resolution. If such dispute is not resolved within thirty (30) days after a party first provides a written dispute notice to the other party, either party may seek to resolve the dispute in accordance with Section 13.2.

13.2 Governing Law and Jurisdiction. The Agreement shall be governed, construed and enforced in all respects solely and exclusively, without giving effect to any law which would result in the application of a different body of law, under the laws of Guardsquare’s country or state (as applicable) of incorporation. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to the Agreement. Subject to Sections 13.1 and 13.3, any and all disputes hereunder shall be brought and resolved solely and exclusively in, and the parties hereby irrevocably consent to the exclusive jurisdiction and proper venue of, the courts of the city or state (as applicable) of incorporation of Guardsquare, and the parties waive any objections thereto based on any ground, including improper venue or Forum Non-Conveniens. The parties hereby irrevocably agree that a final judgment of any of the courts specified above in any action or proceeding relating to the Agreement shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

13.3 Injunctive Relief. Each party acknowledges that its breach of confidentiality or its infringement of the other party’s intellectual property rights would cause irreparable harm to the non-breaching party, the extent of which would be difficult to ascertain. Accordingly, each party agrees that, in addition to any other remedies to which a party may be legally entitled, a party shall be entitled to seek immediate injunctive relief from any court of competent jurisdiction, without the requirement of posting a bond, in the event of a breach or threatened breach of confidentiality or infringement or threatened infringement of a party’s intellectual property rights by the other party or any of the other party’s employees or subcontractors.

13.4 Audit Rights. Customer shall maintain and shall cause its Distributors to maintain full and complete records related to the Products during the Term and for two (2) years after termination or expiration. Guardsquare shall be entitled to audit Customer’s records and networks or, at Guardsquare’s discretion, have them audited by independent auditors to ensure that Customer is in compliance with its obligations under the terms of the Agreement. Guardsquare shall provide Customer with fifteen (15) days prior written notice of its intent to exercise its audit rights provided that Guardsquare may conduct no more than one audit in any twelve (12) month period. Audits shall be performed at Guardsquare’s expense during normal business hours at Customer’s principal place of business; provided that, without limiting Guardsquare’s other rights and remedies hereunder, the cost of such audit (in addition to the full amount of any underpayments and related late charges due under the terms of the Agreement) shall be promptly paid by Customer if such audit reveals an underpayment by Customer of more than three percent (3%) of the amounts payable by Customer to Guardsquare in any twelve (12) month period or any other material breach of the Agreement. Any report by such auditor to Guardsquare shall be limited to the information reasonably necessary to verify the accuracy of Customer’s performance with respect to its obligations under the terms of the Agreement only.

13.5 Export. Customer agrees that in using the Product(s) and Service(s), Customer will comply with applicable export control and trade sanctions laws, rules, and regulations, including without limitation the regulations promulgated by the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) and the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) (collectively, “Export Laws”). Customer represents and warrants that Customer is not (i) located, organized, or resident in a country or territory that is subject to comprehensive U.S. trade sanctions, (ii) identified on any applicable sanctions or restricted party list, including the Specially Designated Nationals and Blocked Persons List, Foreign Sanctions Evaders List, and Sectoral Sanctions Identifications List, administered by OFAC, or (iii) 50% or more owned or otherwise controlled by or acting on behalf of any party described in (i) or (ii). Customer agrees that Customer will not use the Product(s)or Service(s) to disclose, transfer, download, export, or re-export, directly or indirectly, any Customer content to any country, entity or other party which is ineligible to receive such items under the Export Laws. Customer shall not use the Product(s) or Service(s) for (i) any military end-use as defined in Article 4(2) of COUNCIL REGULATION (EC) No 428/2009 or (ii) for any use related to chemical, biological, or nuclear weapons, other nuclear explosive devices or missiles capable of delivering such weapons; and Customer shall not export or transfer the Product(s) or Service(s) where the Customer has knowledge the Product(s) or Service(s) are, or may be, intended for any of the aforementioned uses. Further, Customer agrees to obtain any and all licenses, authorizations, or approvals, and to complete and submit any necessary reports and filings, which are required for the export, re-export, or transfer of Product(s) or Service(s) or technology under U.S. and other applicable laws and regulations. Customer acknowledges that the Product(s) and Service(s) may not be available in all jurisdictions and that Customer is solely responsible for complying with the Export Laws. Customer acknowledges that Guardsquare may cease to provide the Product(s) or Service(s) if Guardsquare determines that Customer has violated any of the representations in this Section and Customer agrees to notify Guardsquare immediately in writing if Customer’s status under any of these representations changes.

13.6 Waiver. A party failing to insist upon strict performance of any of the terms herein shall not be construed as a waiver of the right to assert or rely upon any such terms in the future. All waivers must be in writing and signed by the parties.

13.7 Interpretation. The headings contained in the Agreement have been added for convenience only and shall not be construed as limiting. If an ambiguity or question of intent or interpretation arises, the Agreement shall be construed as if jointly drafted by the parties and no presumption, inference or burden of proof shall arise favoring or disfavoring a party by virtue of authorship of any or all of the provisions of the Agreement.

13.8 Entire Agreement; Amendments. The Agreement, including any Appendices attached hereto, sets forth the entire agreement and understanding of the parties relating to the subject matter contained herein and merges all prior discussions and agreements between them relating to the same subject matter. The Agreement may only be amended by a written amendment to the Agreement signed by authorized representatives of the parties.

13.9 Severability. If any provision herein is ruled unenforceable by any court or authority of competent jurisdiction, then the enforceability of all other provisions shall remain unaffected and the parties shall modify or replace the unenforceable provision to the minimum extent necessary to make it enforceable in conformity with the parties’ original intent.

13.10 Notices. All notices or other communications required or permitted hereunder must be in English and shall be deemed given two (2) business days after delivery to a recognized overnight courier service, charges prepaid, and properly addressed to such other party as first set forth in the Order Form or at such other address as may be specified by either party hereto by written notice similarly sent or delivered.

13.11 Relationship of the Parties. The relationship between the parties is solely that of independent contractors. Neither party nor its employees, agents, and representatives shall be considered agents, partners, franchisees, employees, owners, or representatives of the other party, or parties to a joint venture. Neither party has the authority and neither party shall act or represent itself, directly or by implication, as having the authority to bind or create any obligation or liability on behalf of the other party.

13.12 Counterparts. Execution of Order Forms hereunder may be executed in any number of counterparts, each of which shall constitute an original as against the party whose signature appears thereon, and all of which taken together shall constitute one and the same instrument. Delivery of a pdf-copy of an executed counterpart signature page by email shall be as effective as delivery of a manually executed counterpart.

13.13 Survival. Sections 1.3, 3.0, termination consequences under Section 6.3, 7.0 through 9.0, 12 and 13 of this GTC; Sections 2, 4.3, and termination consequences under Section 5 of Appendix A, the Customer’s payment obligations under the GTC and Appendices, and Sections 3.0 and 7.0 of Appendix B; and any other section that by its nature is intended to survive the termination of the Agreement, shall survive the expiration or termination of the Agreement.

14.0 Section specific to Customers who purchased Products or Services through a Guardsquare authorized reseller.

14.1 In the event the Customer has purchased Products or Services from a Guardsquare authorized reseller (pursuant to a contractual relationship (including an order form) between the Customer and such authorized reseller) with payment obligations applying between such authorized reseller and the Customer under their contractual relationship, any payment related provisions under these GTC shall not apply to such Customer and the Customer’s payment obligations shall be between the Customer and such third-party reseller. In the event such relationship between the Customer and third-party reseller were to terminate, and the Customer purchases Products or Services directly from Guardsquare, these GTC, excluding Section 14, shall apply in full.

14.2 The Customer acknowledges and agrees that the Customer’s relationship with the Guardsquare authorized reseller on the one hand, and these GTC between the Customer and Guardsquare on the other hand, are two distinct contractual relationships which can only be enforced by and against the parties to the relevant contract. Guardsquare is not a party to the contract between the Customer and the Guardsquare authorized reseller.

14.3 The Guardsquare authorized reseller shall provide Level 1 support in relation to any On-Premise Products purchased by the Customer and the Customer must direct any Maintenance and Support Services requests to the reseller rather than directly to Guardsquare.

14.4 In the event the Customer has purchased Products or Services from a third-party Guardsquare authorized reseller:

(i) the Customer shall, in the event of an indemnity claim under article 7.1 of these GTC, seek indemnification from Guardsquare directly under these GTC. In the event the Customer nevertheless raises such indemnity claim against the Guardsquare authorized reseller pursuant to the contractual relationship between the Customer and such reseller, (xx) Guardsquare’s defence and indemnity obligations pursuant to Section 7 of the GTC, as well as any other remedies available to the Customer hereunder in relation to such indemnity claim, shall automatically become null and void, the Customer will no longer have any such rights against Guardsquare hereunder, and this provision may be raised by Guardsquare as, and will constitute a complete bar and defense to, any such Customer claim; and (yy) in the event any amounts payable by Guardsquare to such Guardsquare authorized reseller as a result of such a claim by the Customer exceed Guardsquare’s maximum indemnity under these GTC, such excess amount shall be payable by the Customer to Guardsquare upon first request;

(ii) any contractual right or remedy available to the Customer in respect of its use of the Products or Services (including a claim for damages) may only be enforced by the Customer directly against Guardsquare pursuant to these GTC and under no circumstances will Guardsquare be liable to the Customer acting for itself, and to the Guardsquare authorized reseller based on a claim by the Customer against such reseller pursuant to its contractual relationship with such reseller, for the same loss, costs, damage or expense incurred or sustained by the Customer (meaning, for the avoidance of doubt, that there will be no double recovery of the same loss, costs, damage or expense, directly by the Customer and indirectly through the reseller). In the event of a breach of this provision by the Customer, the consequences as set out in article 14.4 (i) shall apply mutatis mutandis.

14.5 In the event the Customer’s agreement with the Guardsquare authorized reseller terminates on whatever ground, any user rights granted in respect of the Products and Services shall automatically terminate, and the Agreement shall automatically terminate, except for any provisions stipulated to survive the termination.

14.6 In the event of a conflict between this Section 14 and any other provisions of the GTC, including the Appendices, this Section 14 shall prevail.

APPENDIX A – TERMS FOR XTD ON-PREMISE PRODUCTS

The GTC and the terms and conditions set forth in this Appendix A shall apply to XTD On-Premise Products ordered by Customer.

1.0 Grant of Rights. Restrictions.

1.1 Development License. Subject to the terms and conditions of the Agreement, if the Customer purchases Product development licenses pursuant to an Order Form, Guardsquare grants to Customer and Customer accepts, a limited, non-exclusive, personal (non-transferable, non-assignable, non-sub-licensable) right and license, during the Subscription Period, to use the Products for the following purposes only: (i) Customer’s internal development of the Customer Products; and (ii) to reproduce copies of the Guardsquare software Product as necessary for the foregoing purpose.

1.2 Subcontractors. Subject to the terms and conditions of this Agreement, Guardsquare grants to Customer, and Customer accepts, a non-exclusive, personal (non-transferable, non-assignable, non-sub-licensable), limited right and license during the Subscription Period, for Customer to appoint Subcontractor(s) only for the following purposes: development, designing, manufacturing, marketing and/or support of the Customer Products; provided that (a) Subcontractors are bound by written obligations towards the Customer to comply with the license terms set out in this Section 1.2, and the restrictions and obligations set out in the GTC as reasonably applicable to such Subcontractors in exercising such license, including Section 1.5 below, and the confidentiality obligations set out in Section 13 of the GTC, (b) Customer shall be and remain responsible and liable for Subcontractors’ acts and omissions; and (c) such Subcontractors are not competitors of Guardsquare at the time when they provide services to Customer pursuant to this clause. In providing such services, Subcontractors may use the Products for the duration of the Subscription Period in accordance with the terms of the GTC.

1.3 Distribution License. Subject to the terms and conditions of the GTC, if the Customer purchases Product distribution licenses pursuant to an Order Form, Guardsquare grants to Customer, and Customer accepts, a limited, non-exclusive, personal (non-transferable, non-assignable, non-sub-licensable) right and license, during the Subscription Period, either directly or through its Distributors, to (i) market, promote and distribute the Customer Products incorporating or using the Products, to End Users; (ii) maintain and support the Products for End Users but solely as part of a Customer Product; and (iii) grant End Users a non-exclusive, personal (non-transferable, non-assignable, non-sub-licensable) license to use the Products solely as incorporated in or used by the Customer Product, for their internal personal use only. Customer shall be and remain responsible and liable for Distributors’ and End Users’ acts and omissions in breach of the terms of the Agreement;

1.4 License Restrictions and Specific Obligations. Customer shall not and shall cause Distributors and Subcontractors not to: (i) license or distribute the Product as a Standalone Product; (ii) incorporate the Product into any products other than the Customer Product(s); (iii) distribute source code of the Product; (iv) take any action that would cause the Product to be disclosed to unauthorized third parties and/or disseminated, or placed in the public domain; (v) modify, create derivative works, or reproduce the Product (except to the extent such restriction is prohibited by law or if expressly authorized in the GTC); (vi) reverse engineer, decompile, reverse compile, translate, adapt, or disassemble or in any way attempt to reconstruct or discover any source code or algorithms of the Product, except to the extent such restriction is prohibited by applicable law, for interoperability purposes, and then only if Customer has requested such interoperability information from Guardsquare and that request has not been satisfied within a reasonable period; (vii) take any action that would cause the Product to become subject to a public license (including but not limited to an open source license as that term is defined by the Open Source Initiative); (viii) use the Product in violation of the applicable export control restrictions; or (ix) otherwise use, distribute, publish or publicly display the Product, except as expressly authorized herein. Customer shall not remove any copyright notices, trademarks or other proprietary, restrictive or confidentiality notices. Any proprietary mark on an original version of the Product shall be duplicated on any authorized copy. Customer shall, and shall cause Distributors and Subcontractors to, use all commercially reasonable efforts to incorporate Product in the Customer Product in such a way as to prevent third parties from extracting the Product and using it as a Standalone Product.

1.5 Pass Through Obligations. Customer shall, and shall cause Distributors and Subcontractors to, (i) ensure Distributors, Subcontractors and End Users use the Product in compliance with the GTC and this Appendix A; (ii) prohibit any sublicensing, assignment or other transfer of the Product licenses other than as expressly authorized herein; (iii) to the maximum extent permitted by applicable law, impose on Distributors, Subcontractors, and End Users confidentiality obligations, warranty limitations, liability limitations and exclusions, and ownership rights that are at least as protective to Guardsquare as those set forth in the GTC and this Appendix A; and (iv) impose on Distributors, Subcontractors and End Users reporting obligations and audit rights provisions consistent with the terms of the GTC; for clarity, such audit rights provisions shall include the right for Guardsquare to audit such parties’ books and Records.

1.6 Delivery. Upon execution of the applicable Order Form and subject to payment of the amounts payable by the Customer as they fall due, Guardsquare shall deliver the Product to Customer and the Subscription Period shall commence upon Delivery of the Product.

2.0 Fees.

Fees. The One-Time Fee or Recurring Fees or Royalties for the XTD On-Premise Products are set forth in the applicable Order Form. Unless otherwise stated, all amounts are non-refundable. Guardsquare shall invoice Customer the One-Time Fees and/or Recurring Fees upon execution of the Order Form for the XTD On-Premise Products. Fees are due and payable in accordance with Section 1.3 of the GTC.

3.0 Maintenance and Support Services.

3.1 Unless otherwise set forth on the applicable Order Form, Maintenance and Support is included in the Recurring Fees for the XTD On-Premise Products. Upon payment of the Recurring Fee for the XTD On-Premise Products, Guardsquare shall provide Customer with the Maintenance and Support Services in accordance with the Guardsquare Support Policy in effect at time of Delivery, and thereafter, in effect at the commencement of each Renewal Term.

4.0 Warranties.

4.1 Customer warrants that it either owns title to the products and technology bundled with Guardsquare’s Product, or is authorized by their respective owners to license and distribute the Customer Product in the manner contemplated by this Agreement.

4.2 Customer will not provide any warranties or representations on behalf of Guardsquare that would entitle a Distributor, Subcontractor or an End User or third party to assert any rights or demand any remedies from Guardsquare regarding its use of or interest in the Customer Product.

4.3 Except for any warranties as may be expressly set forth in the GTC or this Appendix A, Guardsquare disclaims all warranties in relation to the Products and Services, and Section 8 of the GTC shall apply in this respect.

5.0 Termination.

5.1 Termination. Termination is set forth in Section 6 of the GTC.

5.2 Obligations Upon Termination or Expiration. Upon the termination or expiration of the Agreement or an Order Form for any reason, all licenses granted hereunder/under the Order Form shall cease and Customer shall:

5.2.1 Immediately pay all outstanding sums due to Guardsquare; In the event the Customer terminates the Agreement or Order Form early for convenience or other than as contractually permitted, or if Guardsquare terminates the Agreement or Order Form for the Customer’s breach or cause, fees for the remainder of the Order Form term shall remain payable by the Customer without any refund obligation on Guardsquare;Cease, and cause Subcontractors to cease, any ongoing development of the Customer Product that incorporates the Product;

5.2.2 Subject to Section 5.4 of this Appendix A, cease, and cause its Distributors (if any) to cease, the reproduction, marketing and distribution of the Customer Products that incorporate the Product;

5.2.3 Subject to Section 5.4 of this Appendix A, destroy all copies of the Product and provide Guardsquare written certification that copies of the Product have been destroyed.

5.2.4 End User agreements Upon Termination. Termination or expiration of the Agreement or an Order Form shall not affect licenses granted to End Users prior thereto.

5.3 Post Termination Distribution Rights. Unless Guardsquare has terminated the Agreement for Customer’s breach or for cause, or the Customer terminated other than as contractually permitted, Customer may continue to distribute Customer Products developed up to the date of termination to existing End Users pursuant to the following sections in this Appendix A: Sections 1.3 (Distribution License), 1.4 (License Restrictions), 1.5 (Pass-through obligations), Section 2 (Fees), and compliance with any other provisions of the GTC as reasonably applicable in exercising such licenses, including the confidentiality obligations set out in Section 12 of the GTC.

APPENDIX B – TERMS FOR SECURE CLOUD SUBSCRIPTION SERVICES

The GTC and the terms and conditions set forth in this Appendix B shall apply to Guardsquare’s Secure Cloud Subscription Services, as set forth on the applicable Order Form(s).

1.0 Secure Cloud Subscription Services. Subject to payment of the Services Enablement Fee(s) and the applicable Subscription Fees during the Subscription Period, Guardsquare grants Customer a limited, non-exclusive, personal (non-sublicensable, non-assignable (by operation of law or otherwise)) license to use the Guardsquare Secure Cloud Subscription Services, as set forth on the applicable Order Form(s), solely for Customer’s own business purposes during the Subscription Period.

2.0 Guardsquare Responsibilities. Subject to the terms and conditions of the Agreement, including, but not limited to payment of the applicable Services Enablement Fee(s) and Subscription Fees, Guardsquare will: (a) during the Subscription Period, make the Guardsquare Secure Cloud Subscription Services available to Customer on a software as a service basis; (b) make the Documentation for the applicable XTD Services available to Customer; (c) provide to Customer user names, passwords and other information required to use the Guardsquare Secure Cloud Subscription Services environment; and (d) Guardsquare will provide regular routine and other System administration and support services, as set forth in Guardsquare’s Support Policy, necessary to maintain the Secure Cloud Subscription Services environment. For clarity, Guardsquare does not manage any applications (such as subscriber management systems, encoders, asset management, etc.) or the user administration within the Secure Cloud Subscription Services that interact with Guardsquare software in the overall delivery network. Guardsquare will maintain the Secure Cloud Subscription Services and shall provide service availability in accordance with the Guardsquare Support Policy in effect at the time of commencement of the Guardsquare Secure Cloud Subscription Services, and thereafter, in effect at the commencement of each Renewal Term.

3.0 Invoicing and Payment. For Secure Cloud Subscription Services, Guardsquare will generate invoices for Subscription Fees based on the Unit Type set forth on the Order Form in accordance with Section 1.3 of the GTC.

4.0 Customer Responsibilities. Customer is responsible for: (i) procuring, at its expense, the necessary environment at the Customer’s location(s) to connect to the Secure Cloud Subscription Services environment including, without limitation, all computer hardware, software and equipment, third-party video ecosystem equipment, internet access and telecommunications services (collectively, the “Customer Systems”); (ii) complying with all laws, rules and regulations related to Customer’s use of the Services and Customer Data; (iii) keeping its user name and password secret and confidential, and, for any communications or activities that are undertaken, using the same; (iv) changing its user name and password if it believes that the same has been stolen or might otherwise be misused; (v) immediately notifying Guardsquare if Customer suspects a compromise or misuse of the Services; and (vi) obligations under any third-party agreements to which Customer is a party, including, without limitation, any agreement pursuant to which Customer procures the Customer systems or any portion thereof, regardless of whether Guardsquare provides Customer with any assistance in such procurement. Customer shall bear all costs of obtaining, installing, and maintaining the Customer systems. Customer will not: (a) license, sublicense, sell, resell, transfer, assign, distribute, or commercially exploit or make the Services available to any third party in any way; (b) except as permitted in the use of the Services, modify or make derivative works based upon the Services; (c) remove or alter any proprietary markings from the Services; (d) reverse engineer decompile, reverse compile, adapt, or disassemble, or in any way attempt to reconstruct or discover any algorithms of the Services, except to the extent such restriction is prohibited under applicable law; (e) access the Services to build a competitive product or service, or to copy any feature or function of the Services; (f) publish benchmark tests relating to the Services, except as expressly agreed in writing by Guardsquare; (g) use the Services to store or transmit any infringing, libelous, unlawful, tortious, or otherwise objectionable material or Data; (h) send any spam or unsolicited marketing or emails or messages; (i) interfere with or disrupt the integrity of performance of the Services; or (j) attempt to gain unauthorized access to the Services or their related systems or networks. Customer’s use of the XTD Services is limited to devices and operating systems Guardsquare supports and may be affected by the performance and compatibility of Customer’s Systems. Customer shall ensure no viruses or malicious code like malware, spyware, key logger, bots (as the expressions are generally understood in the computing industry) interfere with, compromise or adversely affect the provision of the XTD Services, or are submitted to the XTD Services. This includes, without limitation, denial of XTD Services, interruption of XTD Services, reduction or compromise in quality and efficiency of XTD Services, or any other aspect that compromises the security or continuity of the XTD Services.

5.0 Acceptable Use Policy.

5.1 Acceptable Use Policy. Customer shall use the Secure Cloud Subscription Services only for lawful purposes, in compliance with all applicable laws. Customers shall use the Secure Cloud Subscription Services in a manner that does not generate excessive Transaction volume.

Customer shall be responsible for all use of the Secure Cloud Subscription Services environment by its end users, regardless of whether such use is known to or authorized by Customer. The Secure Cloud Subscription Services are provided for use in conformance with the terms and conditions of the Agreement. Guardsquare reserves the right to investigate suspected violations of the Agreement. If Guardsquare becomes aware of possible violations, Guardsquare may initiate an investigation including gathering information from Customer and examination of material on Guardsquare’s servers. During the investigation, Guardsquare, in its sole discretion, may suspend access to the Secure Cloud Subscription Services environment by Customer and/or any end users. If Guardsquare determines, in its sole discretion, that a violation of the Agreement has occurred or Customer’s or an end user’s use of the Secure Cloud Subscription Services (i) poses a security risk to the Secure Cloud Subscription Services or any third party, (ii) may adversely impact the Secure Cloud Subscription Services or the systems of any other customer, (iii) may subject Guardsquare, its Affiliates, or any third party to liability, (iv) may be fraudulent, or (v) generates excessive Transaction volume, Guardsquare may take action, including issuance of warnings to Customer or the suspension or termination of the Secure Cloud Subscription Services, without limiting Guardsquare’s other rights and remedies.

5.2 Passwords. Customer is responsible for maintaining the confidentiality of any password(s) and access codes given to access the -Secure Cloud Subscription Services environment and is fully responsible for all activities that occur under those usernames, password(s), and access codes, including assigning access privileges to its own employees and other users. Customer agrees to notify Guardsquare immediately of any unauthorized use of its password(s), and to take reasonable measures to disable accounts and/or generate new passwords in a timely manner. Customer shall be solely responsible for the security of its usernames and passwords. Continued failure by Customer to maintain password security may result in the suspension or termination of the Secure Cloud Subscription Services.

5.3 System Security. Customer shall not compromise the security of the Secure Cloud Subscription Services environment, Products, the System, or any other system. Customer use or distribution of tools designed for compromising security is strictly prohibited, including, without limitation, password guessing programs, cracking tools, penetration testing, distributed denial of service (DDoS) resiliency testing, load testing, or network probing tools. Guardsquare reserves the right to release identification information of Customer, if Customer is involved in violations of security, to systems administrators at other Secure Cloud Subscription Services environments in order to assist them in resolving security incidents. Guardsquare shall also fully cooperate with law enforcement authorities in investigating suspected lawbreakers. The use of the Secure Cloud Subscription Services environment does not grant Customer, and Customer hereby waives any right of physical access to, or physical possession of, any servers, equipment, real or personal property, or other assets.

6.0 System Monitoring. Guardsquare reserves the right to monitor the System electronically from time to time and to access and disclose any information as permitted or required by any law or regulation, to operate its System properly, or to protect itself or other customers, provided that, to the extent legally permitted, Guardsquare shall provide Customer prior notice of any such disclosure. Guardsquare shall fully cooperate with law enforcement authorities in investigating suspected violators.

7.0 Retention of Customer Data. Subject to the terms and conditions of the Agreement, Guardsquare will retain Customer Data stored on the Secure Cloud Subscription Services during the Subscription Period and for thirty (30) days after termination of the Guardsquare Secure Cloud Subscription Services, unless specified otherwise in the DPA. If Guardsquare receives a request for a copy of Customer Data in writing from Customer during such thirty (30) day period, Guardsquare will provide Customer with a copy of such Customer Data. Guardsquare will not commingle Customer Data with data of other customers. Notwithstanding, nothing herein shall limit Guardsquare’s right to retain and commingle Aggregated Data.

APPENDIX C – DEFINITIONS

“Active XTD Device” means an instance of a Customer Product on a unique consumer electronics product where the Customer Product has been launched at least once within the measuring time period, which, unless otherwise stated in the Order Form, shall mean once in a calendar month.

“Affiliate” means any legal entity or company which either Party directly or indirectly (i) owns or controls, (ii) is owned or controlled by or is (iii) under common ownership or control with such Party, whereby “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a person or entity, whether through ownership of voting interests, by contract or otherwise, and an entity (directly or indirectly) owning more than 50% of the voting securities of another entity shall in any event be deemed to control that entity.

“Aggregated Data” means Customer’s Data (i) anonymized and de-identified to any person or entity, (ii) combined with the data of other customers or additional data sources, and (iii) presented in a manner in which Customer’s identity may not be derived.

“Agreement” means, collectively, the Order Form(s), the Statement(s) of Work (if applicable), and the GTC and its Appendices.

“Application” means an application / code base as the source code collection of a particular application with a defined use case (i.e., a web platform, JavaScript SDK, Mobile App, etc.).

“Application ID” means each application distributed via Google Play store or Apple’s AppStore is given a unique identifier. If an application is distributed through other means, the package identifier is deemed as the Application ID.

“Billing Period” means the intervals that Guardsquare will invoice Recurring Fees as set forth on the Order Form(s).

“Customer” means the entity that procures Products and/or Services from Guardsquare and is identified on the applicable Order Form.

“Customer Product(s)” means the Customer’s product offered by Customer, or its Distributors, to End Users incorporating or otherwise using all or part of the XTD Services or XTD On-Premise Product(s) listed in the Order Form. In certain instances, Customer’s use of the XTD Services or XTD On-Premise Products may be limited to a certain Customer Product(s), in which case, such limitation shall be expressly set forth in the Order Form.

“Confidential Information” means any data or information, disclosed by one party to the other party during the term of the Agreement, that is identified as confidential or, by its nature, or under the circumstances surrounding its disclosure, should reasonably be understood to be confidential. Confidential Information in any event includes: (i) any software, as either source code or object code, the technology incorporated in any products, delivered in any other form, including, micro-processing chips or board assemblies, hardware and the technology, ideas, know how, documentation, processes, algorithms and trade secrets embodied therein; (ii) information about product plans, marketing strategies, finance, operations, customer relationships, customer profiles, sales estimates or financial performance of either party; and (iii) the terms and conditions of the Agreement. Confidential Information shall not include information which: (a) is, at the time of disclosure hereunder, or subsequently becomes part of, the public domain other than by breach of this Agreement; (b) is rightfully received by the receiving party from a third party without confidential limitations; (c) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party, as evidenced by written records; (d) is known to the receiving party, without confidentiality restrictions, prior to its first receipt from the disclosing party, as evidenced by written records; (e) or is approved for public release by written authorization of the disclosing party, to the extent of such approval only.

“Data” means any electronic data or information submitted or generated by Customer through use of the Products and/or Services.

“Delivery” means

in the case of software, when the software is made available by Guardsquare for download by Customer and Guardsquare provides the download instruction to the Customer;
in the case of Professional Services, upon completion of the Professional Services;
in the case of Guardsquare Secure Cloud Subscription Services, the Ready-for-Service Date;
in the case of Guardsquare Secure Cloud Subscription Enablement Fees, upon execution of the applicable Order Form by Guardsquare and Customer;
in the case of Maintenance and Support Services, upon Delivery of the software.

“Distributor” means Customer’s distributors or resellers authorized by Customer to distribute the Customer Product(s) directly or indirectly to End Users.

“Documentation” means the tangible specifications and usage guides generally provided by Guardsquare with the applicable Product.

“Effective Date” means the date that the applicable Order Form is signed by an authorized representative of both parties or the date that Guardsquare and Customer enter into a fully executed agreement for the Products and Services.

“End User” means an end customer of Customer that acquires a Customer Product directly from Customer or indirectly from Distributor for internal personal use only. An End User shall have no right to further (sub)license use of the Customer Product.

“Functional Specification” means the portion of the Documentation that describes the functioning of the applicable Product.

“Guardsquare Support Policy” means the policy describing the Maintenance and Support Services as applicable from time to time, the current version being available at https://protectmyapp.com/support-policy/.

“GTC” means these General Terms and Conditions, including its Appendices, all of which are hereby incorporated by this reference into the applicable Order Form(s).

“Improvements” means modifications, enhancements, translations, derivative works, Updates, Upgrades, new versions or new releases and all other improvements to the Product.

“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, and the right to apply for, maintain and enforce any of the foregoing protection.

“License Term” means the defined period of time that Customer may use the XTD On-Premise Product, as defined on an Order Form.

“Maintenance and Support Fees” means the Recurring Fees, as identified on an Order Form, payable to Guardsquare for Maintenance and Support Services by Customers licensing Product(s) for use for a Subscription Period as set forth in an Order Form.

“Maintenance and Support Services” means maintenance and support services delivered by Guardsquare, as further detailed in the Guardsquare Support Policy in effect at the time of Delivery.

“Minimum Contracted Quantity” means the monthly minimum number of Unit Type payable for the Subscription Period or License Term (unless otherwise stated in the applicable Order Form).

“On-Premise Products” means Products ordered by Customer for deployment at Customer’s premises or deployment in Customer’s cloud environment, subject to such environment complying with the Guardsquare specifications for use of the Products.

“One-Time Fee(s)” means a non-recurring fee, as identified on an Order Form, payable to Guardsquare for the applicable Product and/or Services.

“Order Form” means written quotations for Products and/or Services delivered by Guardsquare to Customer. Each Order Form shall detail the Product and/or Services, quantities, price, expiration date, and specific terms and conditions relating to the order.

“Payment Term” means the number of days, as defined in the Order Form(s) and GTC, following the invoice date during which full payment to Guardsquare must be submitted.

“Personal Data” means Customer Data that identifies or could be used to identify an individual.

“Products” means products licensed by Guardsquare, including, without limitation, Guardsquare proprietary software, in object code format, as identified on a specific Order Form issued by Guardsquare.

“Professional Services” means consulting services to be performed by Guardsquare for Customer, as defined in a Statement of Work.

“Quantity” means the number of Unit Type identified as an ‘up to” number or cumulative tiers priced per month/year as set forth in the Order Form for the Subscription Period.

“Quotation” means a proposal for Products and/or Services delivered by Guardsquare to Customer and may be presented in the form of an Order Form.

“Ready-for-Service Date” means the date that Guardsquare notifies Customer that the Guardsquare Secure Cloud Subscription Services are available for use and, Guardsquare provides instructions to Customer for accessing the Guardsquare Secure Cloud Subscription Services.

“Records” means recorded information maintained by Customer and Distributors relating to the use of the Product and Customer Product.

“Recurring Fee(s)” means a fee for Guardsquare Products or Services, as identified in the Order Form(s), that is payable on a periodic basis as defined in the Billing Period section of an Order Form.

“Secure Cloud Subscription Services” means Customer access to Guardsquare software available as a service deployed in Guardsquare’s secure cloud, as agreed by the parties in a signed Order Form.

“Security Incident” means any accidental or unauthorized access, acquisition, use, modification, disclosure, loss, damage, or destruction of Personal Data.

“Sensitive Personal Data” means name or another identifier in combination with one or more of the following: (i) social security number, taxpayer identification number, passport number, driver’s license number or other government-issued identification number; (ii) credit or debit card details or financial account number, with or without any code or password that would permit access to the account; or (iii) medical or health information.

“Service Enablement Fee(s)” means One-Time Fee(s) for setting up the Guardsquare Secure Cloud Subscription Services.

“Services” means services ordered by Customer for performance by Guardsquare, including, without limitation, Secure Cloud Subscription Services, Maintenance and Support Services, XTD Services, Professional Services and any other services as may be identified in the Order Form.

“Standalone Product” means the Guardsquare proprietary technology in executable object code form, for use separately from the Customer Product.

“Statement of Work” or “SOW” means a written description of a project, deliverables, scope of work, and/or timeline for delivery of Professional Services, which is executed by authorized representatives of Guardsquare and the Customer.

“Subcontractor(s)” means any legal entity(ies) to which Customer subcontracts the development, design, testing, manufacturing, marketing and/or support of the Customer Product, on behalf of Customer. Subject to Section 1.2 of Appendix A, Customer may use additional subcontractors from time to time, provided that Customer sends (including via e-mail) a notification to Guardsquare specifying the company name, address, contact information of such new subcontractor and the development location(s). Guardsquare reserves the right to refuse a new subcontractor.

“Subscription Fees” means Recurring Fee(s) payable for Guardsquare Secure Cloud Subscription Services or for On-Premise Products subject to a Subscription Period.

“Subscription Period” means the defined period of time that Customer may access and use the Secure Cloud Subscription Services, as defined on an Order Form.

“System” means the server(s) on which the Secure Cloud Subscription Services are hosted and all other equipment, virtual instances, or virtual images utilized by Guardsquare to provide the Secure Cloud Subscription Services.

“Term” means the period commencing on the Effective Date and remaining in effect as long as Customer has a valid and effective license for the Products and/or Services, which has not been terminated pursuant to Section 6.0 of the GTC.

“Transaction” means a unique device key or entitlement request as documented in the event logs for the Services.

“Unit Type” means the unit of measurement as set forth in the Order Form which shall be the basis for calculation of Recurring Fees thereunder.

“Unit Type Rate” means the price per Unit Type per month/year as set forth in the Order Form for the Subscription Period or License Term.

“XTD” means Extended Threat Defense.

“XTD On-Premise Products” means the Guardsquare products and services available on a subscription basis on-premise as further specified in the applicable Order Form, and which are governed by the XTD On-Premise Products terms and conditions in Exhibit A. The term Products as used in the Agreement shall be deemed to include XTD On-Premise Products.

“XTD Services” means the Guardsquare products and services available on a subscription basis in the cloud as further specified in the applicable Order Form, and which are governed by the Secure Cloud Subscription Services terms and conditions in Exhibit B.