INFRASCALE CUSTOMER AGREEMENT

This Customer Agreement is entered into by Infrascale, Inc. (“Infrascale”) and the person or entity agreeing to these terms (“You” or “Your”) and consists of (a) the terms contained herein, (b) the Additional Terms (as defined below), and (c) any Infrascale Order (as defined below) (collectively, this “Agreement”). This Agreement governs Your use of the Infrascale Service Offerings (as defined below).

BY EXECUTING AN INFRASCALE ORDER THAT REFERENCES THIS AGREEMENT, USING INFRASCALE SERVICE OFFERINGS OR OTHERWISE INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ARE BOUND BY THIS AGREEMENT. IF YOU ARE AN INDIVIDUAL ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, (A) YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, AND (B) YOU AGREE, ON BEHALF OF SUCH ENTITY, TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT HAVE FULL LEGAL AUTHORITY TO BIND SUCH ENTITY OR DO NOT ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT EXECUTE AN INFRASCALE ORDER, CREATE AN ACCOUNT, USE THE INFRASCALE SERVICE OFFERINGS OR OTHERWISE INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT.

1. Definitions.

1.1.   “Account Information” means information about You and Users that You provide to Infrascale in connection with the creation or administration of Your Account, and may include names, usernames, phone numbers, email addresses and billing information associated with Your Account.

1.2.   “Additional Terms” means the following terms and policies: Infrascale Terms of Service, Privacy Policy, Service Level Agreement, Overage Billing Policy, Hardware Warranty Policy (to the extent applicable), Statement of Support, Third Party Terms and any other terms and conditions disclosed to You in an Order, if applicable, through Your online account (“Account”) or in connection with accessing any Services, each of which are hereby incorporated by reference.

1.3.   “Brand Features” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.

1.4.   “Confidential Information” means all nonpublic information that one party or its affiliate (the “Discloser”) discloses to the other party (the “Recipient”) under this Agreement that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Notwithstanding the foregoing, Infrascale Confidential Information shall include (a) nonpublic information relating to the technology, customers, pricing, product plans, marketing activities, finances and other business affairs of Infrascale, its affiliates, suppliers, or licensors, (b) third-party information that Infrascale is obligated to keep confidential, and (c) the nature, content and existence of any discussions or negotiations between You and Infrascale or its affiliates. Confidential Information does not include any information that (i) is or becomes publicly available without breach of this Agreement, (ii) was known to the Recipient at the time of the Recipient’s receipt hereunder, (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act, or (iv) is independently developed by the Recipient.

1.5.   “Content” means software, data, text, files, audio, video or images.

1.6.   “Documentation” means Services support material, if any, made available by or on behalf of Infrascale, which may include product guides, manuals, specifications, and knowledgebase articles, each as may be updated from time to time.

1.7   “EOL Hardware” means all Hardware not set forth on the list of currently supported models of Hardware at: docs.infrascale.com/dr/specification#specifications-for-physical-appliances.

1.8.   “Fees” means (a) applicable fees for each Service as set forth in the Order or, if an Order is not executed or the fees are not set forth in the Order, as set forth in the then-current Infrascale price list, (b) applicable fees for Hardware, if any, (c) applicable support fees, (d) transportation fees and related charges, (e) applicable overage fees pursuant to the Overage Billing Policy, and (f) all additional fees as mutually agreed upon by the parties.

1.9.   “Hardware” means all computer and computer-related physical equipment, if any, provided by Infrascale for use with the Services and/or Software.

1.10.   “Indirect Taxes” means applicable taxes and duties, including, without limitation, VAT, service tax, GST, excise taxes, sales and transactions taxes, and gross receipts tax.

1.11.   “Infrascale Content” means Content made available by or on behalf of Infrascale in connection with the Services or on the Infrascale website at http://infrascale.com (the “Site”) to allow access and use of the Services, including without limitation APIs, Documentation, Creatives, software libraries, templates, and other related technology.

1.12   “Legacy Hardware” means Hardware that has been in service for more than six (6) years.

1.13.   “Losses” means any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees).

1.14  “Order” means (a) a written quote or other ordering document prepared by Infrascale and either (i) executed by Your authorized representative, (ii) referenced in a purchase order issued by You, or (iii) otherwise agreed to by Your authorized representative; or (b) Your or a User’s registration for and/or enablement of the applicable Services via Your Infrascale Dashboard. Your acceptance of a quote or ordering document or registration for and enablement of Services in accordance with any of the foregoing shall constitute Your execution of the Order for purposes of this Agreement.

1.15.   “Policies” means the Privacy Policy, Website Terms of Use, Terms of Service, all restrictions described in the Infrascale Content, and any other policy or terms referenced in or incorporated into this Agreement.

1.16.   “Service” means each of the services made available by or on behalf of Infrascale, including those services described in the Terms of Service. Services do not include any Third-Party Product.

1.17.   “Service Offerings” means the Services, Infrascale Content, Software, Infrascale Brand Features, Hardware, and any other product or service provided by or on behalf of Infrascale under this Agreement. Service Offerings do not include any Third-Party Product.

1.18.   “Service Term” or “Order Term” means, with respect to each subscription for any Service, the Initial Service Term (as defined below) plus any Renewal Term(s) (as defined below).

1.19.   “Software” means the software, if any, identified in an Order, as well as other software made available to You hereunder by or on behalf of Infrascale, including any applications, utility programs, and interfaces.

1.20.   “Support” means the support services described in the Support Policies, which support services are provided by or on behalf of Infrascale for the applicable Services purchased by You.

1.21.   “Support Policies” means the Service Level Agreement, Hardware Warranty Policy, Statement of Support and any other support policies for Services located at infrascale.com/legal.

1.22.   “Suspend” or “Suspension” means disabling or limiting access or use of the Service Offerings.

1.23.   “Termination Date” means the effective date of termination provided in accordance with Section 7, in a written notice from one party to the other.

1.24.   “Third-Party Product” means any Content made available to You by any third party on the Site or in conjunction with the Services, including any non-Infrascale-branded software and services licensed to You pursuant to Third Party Terms. Infrascale reserves the right to suspend or terminate any Third-Party Product at any time. In the event of a conflict between these Terms and any Third Party Terms, the Third Party Terms will prevail with respect to the Third-Party Product that is the subject matter of such terms.

1.25.    “Trial Service” shall have the meaning ascribed to such term in the Terms of Service.

1.26.   “User” means any individual or entity authorized by You or on Your behalf to access or use Your Content or the Service Offerings under Your Account.

1.27.   “Your Content” means all Content that You or any User (or Infrascale, when acting on Your instructions) transfers to Infrascale for processing, storage, or hosting by the Services in connection with Your Account. Your Content does not include Account Information.

2. Your Rights.

2.1.   Training. Following Your purchase of a subscription to a Service, Infrascale will provide You initial technical training with respect to such Service via webinar or as otherwise agreed upon by Infrascale. After the initial technical training has been completed, any further training may be provided by Infrascale for a fee.

2.2.   Support. Subject to the terms and conditions of this Agreement, Infrascale will provide Support to You for the Services in accordance with the then-current Support Policy.

2.3.   Advertising and Marketing. Infrascale may provide You access to the Infrascale “Partner Resource Center”, which contains advertising and other creative materials that promote the Services. Such materials may include Infrascale Brand Features, Documentation, graphics, download buttons, banners, and related materials (individually and collectively, “Creatives”). Subject to the terms and conditions of this Agreement, You may use, reproduce, modify and/or distribute the Creatives solely in connection with Your promotion of Services and strictly in accordance with guidelines (if any) included in the Partner Resource Center. You agree that You shall not modify, remove, or otherwise affect the Infrascale Brand Features. You represent and warrant that any modifications made to the Creatives by or on Your behalf shall not (a) infringe or misappropriate the intellectual property rights of Infrascale or any third party, (b) portray the Service Offerings or Infrascale in a false light, (c) contain any inaccurate statements or misrepresentations regarding the Service Offerings or Infrascale, or (d) contain any defamatory, scandalous, libelous, or unlawful matter.

3. Your Responsibilities.

3.1.   Users. You are responsible for providing any necessary notices to Users and for obtaining any legally-required consents from Users concerning their use of the Service Offerings. You will ensure that all Users comply with all terms and conditions of this Agreement and that the terms of Your agreement with each User are consistent with this Agreement. You will be deemed to have taken any action that You permit, assist, or facilitate any person or entity to take related to this Agreement, Your Content or use of the Service Offerings. You are responsible for Users’ use of Your Content and the Service Offerings and are liable for Users’ acts and omissions. If You become aware of any violation by any User, You will immediately suspend that User’s access to Your Content and the Service Offerings. Infrascale is not obligated to provide Support to Users unless Infrascale has a separate agreement with You or a User obligating us to provide such Support.

3.2.   Representations and Warranties. You represent and warrant that (a) You have full capacity, right and authority to enter into this Agreement, (b) You will comply with all applicable laws in Your performance of this Agreement, (c) any modifications of the Service Offerings made by You or on Your behalf shall not infringe or misappropriate any intellectual property, proprietary, or other rights of any third party, where such infringement or misappropriation would not have occurred but for such modification(s), and (d) Your entry into this Agreement and performance of Your obligations do not breach any of Your obligations to any third party, or breach any contract, agreement, or order by which You are bound.

3.3.   Insurance. For the Term of this Agreement, You shall maintain commercial general liability insurance with limits of at least $1,000,000 per occurrence and an annual aggregate of at least $2,000,000. Such insurance may not be changed or cancelled without at least thirty (30) days’ prior written notice to Infrascale.

3.4.   Non-Solicitation of Customers. Infrascale agrees that with respect to each of Your customers who (a) purchases a subscription to an Infrascale Service from You, and (b) continues to maintain an active subscription to such Service through You (each, an “Infrascale Service Customer”), Infrascale will not knowingly sell any Services to such Infrascale Service Customer other than through You; provided, however, the foregoing obligation is strictly subject to Your provision of a current and accurate Customer List (as defined below) to Infrascale in which the applicable Infrascale Service Customer has been identified. The foregoing Infrascale obligation shall not apply if (i) Infrascale was already in a contractual relationship with, or in active negotiations towards a contractual relationship with, such Infrascale Service Customer prior to You furnishing a Customer List with such Infrascale Service Customer identified, or (ii) You are in breach of any term of this Agreement. A “Customer List” shall mean a written notice to Infrascale that identifies those current Infrascale Service Customers who satisfy the conditions described in (a) and (b) above. For the avoidance of doubt, You are not required to provide a Customer List to Infrascale, however the obligation of Infrascale set forth above shall apply only with respect to those Infrascale Service Customers accurately identified on a current Customer List. Except as expressly set forth in this Section, Infrascale retains the absolute and unrestricted right to market, distribute, sell and otherwise transact in the Services through any third party or directly with any customer by itself, without Your involvement or participation or any obligation to You in respect thereof (including, without limitation, any payment obligation).

3.5.   Hardware.

(a) Delivery; Loss. If You are entitled to receive Hardware for use in connection with Infrascale Disaster Recovery (“IDR”) or Infrascale Backup & Disaster Recovery (“IBDR”), delivery of the Hardware shall be made DAP (Delivered at Place, Incoterms® 2020) at Your designated facility (the “Designated Facility”) in accordance with the delivery schedule mutually agreed upon by the parties. Unless expressly agreed to otherwise, You are responsible for and shall pay all transportation fees as specified in the Order, as well as all duty, customs clearance and other charges related to delivery to an international destination. You will ensure that You have all necessary rights, certifications, and licenses for the delivery, installation, maintenance, use, and removal of the Hardware at the Designated Facility. From the time the Hardware is delivered to Your Designated Facility until its return to us, You are responsible for any loss, theft, damage to, or destruction of the Hardware, except to the extent caused by us. If You breach these Terms, we may terminate Your and Your User’s right to use the Hardware and we may remove the Hardware.

(b) Title. Except as otherwise expressly agreed in writing by us, (i) we will make Hardware available to You to support Your or Your User’s use of the IDR or IBDR Service, (ii) Infrascale and/or its suppliers are the owner of the Hardware and will retain title thereto; and (iii) You will not, and will not purport to, assign, grant, or transfer the Hardware or any interest in the Hardware to any individual or entity, and any such purported assignment, grant, or transfer is void.

(c) Installation; Customization. We will reasonably assist You with the installation of the Hardware on a mutually agreeable date. Except as expressly set forth in an Order, all branding requests, integration, API development and non-standard deployments which require any custom engineering work by us will be quoted separately and subject to a separate agreement between You and us.

(d) Facility Assessment. You will ensure that the Designated Facility at which the Hardware is located meets the minimum requirements reasonably necessary to support the installation, maintenance, use, and removal of the Hardware.

(e) Access to Hardware. You will ensure that personnel designated by Infrascale are provided prompt and reasonable access to the Designated Facility as necessary to deliver, install, inspect, maintain, and remove the Hardware. You will not require the designated personnel to sign, accept, or otherwise agree to any documentation as a condition of accessing the Designated Facility (other than a standard visitor’s log), and You agree that the terms of any such documentation are void even if signed by the designated personnel. You will ensure that no one modifies, alters, reverse engineers, or tampers with the Hardware, and that no one accesses, moves, or repairs the Hardware other than (i) personnel designated by us, (ii) as permitted in writing by us in connection with the maintenance of Hardware, or (iii) as necessary due to a situation involving imminent injury, damage to property, or an active fire alarm system. You acknowledge that the Hardware may be equipped with tamper monitoring.

(f) Services and Security. There are inherent differences between Services running on Hardware at Your Designated Facility and those Services running at Infrascale operated facilities, since the Hardware is physically located at the Designated Facility where You are responsible for physical security and access controls, as well as all power, networking, and environmental conditions. Due to these differences, any Infrascale obligations or commitments in these Terms that depend on our operation of physical security and access controls, or power, networking, or environmental conditions, do not apply to Hardware or any IDR or IBDR Services running on Hardware not located at an Infrascale operated facility.

(g) Import/Export. You are responsible for complying with all applicable import, re-import, export, and re-export control laws with respect to the Hardware and any included Software, including any applicable license requirements and country-specific sanctions programs. You are responsible for serving as the exporter and importer of record (as applicable) for the Hardware, and You accept that we will not participate in the export or import procedure.

4. Ordering and Payment Terms.

4.1.   Purchases. You may purchase a subscription for the right to access and use the Service Offerings by entering into an Order with Infrascale. Purchase of a subscription to the Service Offerings includes Your right to access applicable Support during the Service Term.

4.2.   Payment. Your right to access and use the Service Offerings is subject to Your timely payment of Fees. Following each billing period, Infrascale will issue an invoice to You for Fees due based on (a) Your purchase of Services (for those Services not provided under a consumption-based license model), (b) Your and Users’ use of consumption-based Services during the previous billing period, (c) Your and Users’ excess usage of the Services pursuant to the  Overage Billing Policy, and (d) any other fees due hereunder. Overage fees due pursuant to the Overage Billing Policy will be invoiced in arrears. Payment shall be made by debit card, credit card, or ACH/direct debit.  You authorize Infrascale to charge Your payment method for all amounts due under this Agreement. If You purchase a multi-year subscription or a multi-year renewal for any Service, Your purchase is for the full value of all years of the subscription, even if the required payments are made in installments (e.g., monthly or annually). Except as otherwise provided in this Agreement or applicable law, Your obligation to pay all Fees is non-cancellable and the measurement by Infrascale of Your and Users’ use of consumption-based Services and excess usage of any Service is final. All Fees will be paid to Infrascale without setoff or counterclaim and are non-refundable.

4.3.   Delinquent Payments. If any payment is more than thirty (30) days past due (including if payment is late due to a credit card expiration or chargeback or insufficient funds), Infrascale may, without limiting any remedies available to it hereunder and notwithstanding the opportunity to cure set forth in Section 7.2, (a) Suspend all or part of Your and Users’ use of the Service Offerings until payment is made current, or (b) immediately terminate this Agreement and/or any specific Order(s) for breach. Infrascale may charge You interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments. You are responsible for any and all costs of collection incurred by Infrascale in collecting such late or past due payments, including reasonable attorney’s fees and litigation costs.

4.4.   Taxes. Each party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that party upon or with respect to the transactions and payments under this Agreement. All Fees payable by You are exclusive of Indirect Taxes. Infrascale may charge and You will pay applicable Indirect Taxes that Infrascale is legally obligated or authorized to collect from You. You will provide such information to Infrascale as reasonably required to determine whether Infrascale is obligated to collect Indirect Taxes from You. Infrascale will not collect, and You will not pay, any Indirect Tax for which You furnish us a properly completed exemption certificate or a direct payment permit certificate for which Infrascale may claim an available exemption from such Indirect Tax. All payments made by You to Infrascale under this Agreement will be made free and clear of any deduction or withholding, as may be required by law. If any such deduction or withholding (including but not limited to cross-border withholding taxes) is required on any payment, You will pay such additional amounts as are necessary so that the net amount received by Infrascale is equal to the amount then due and payable under this Agreement. Infrascale will provide You with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments made under this Agreement.

4.5.   Invoice Disputes & Refunds. You must submit any invoice disputes prior to the payment due date. If the parties determine that certain billing inaccuracies are attributable to Infrascale, Infrascale will not issue a corrected invoice, but will instead issue a credit memo specifying the incorrect amount in the affected invoice. If the disputed invoice has not yet been paid, Infrascale will apply the credit memo amount to the disputed invoice and You will be responsible for paying the resulting net balance due on that invoice. To the fullest extent permitted by law, You waive all claims relating to Fees unless claimed within sixty (60) days after charged (this does not affect any of Your rights with Your credit card issuer).

4.6.   Overages. The Services are subject to usage limits specified in this Agreement, the Order, and the Overage Billing Policy. You acknowledge that use of the Services in excess of the usage limits may result in additional fees and agree to pay such fees in accordance with the Overage Billing Policy.

4.7.  Initial Service Term and Renewals.  Your subscription will be in effect for the initial service term identified on the Order or selected in Your Account, as applicable (the “Initial Service Term”). Your subscription (including subscriptions for consumption-based services) is auto-renewing, and Your purchase constitutes Your agreement to the auto-renewal of Your subscription for successive one (1) year terms, provided that if the Initial Service Term of Your subscription is monthly, the subscription shall auto-renew for successive one (1) month terms (each term of a renewal, the “Renewal Term”). Notwithstanding the foregoing, Infrascale may impose limits on the number of Renewal Terms for certain subscriptions based on the age of the Hardware or other factors. You maintain the right to give email notice of non-renewal to Infrascale at support@infrascale.com at least thirty (30) days prior to the end of the then-current term. Each consumption model invoice shall constitute an auto-renewal notice under consumption models. All Orders, including for renewals, are subject to acceptance by Infrascale in its discretion.

5. Confidential Information.

5.1.   Obligations. The Recipient shall maintain the confidentiality of the Discloser’s Confidential Information with at least the same degree of care that it uses to protect its own confidential and proprietary information, but no less than a reasonable degree of care under the circumstances. The Recipient shall not use the Discloser’s Confidential Information for any purpose except as required or necessary for performance of this Agreement. Without limiting the foregoing, the Recipient will not disclose the Discloser’s Confidential Information except to affiliates, employees, agents, or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to maintain its confidentiality on terms at least as restrictive as those contained herein. The Recipient will ensure that those people and entities use the Discloser’s Confidential Information only to exercise rights and fulfill obligations under this Agreement. The Recipient shall promptly return to the Discloser, or destroy, as the case may be, the Discloser’s Confidential Information following the termination or expiration of this Agreement or earlier upon written request of the Discloser.

5.2.   Required Disclosure. Notwithstanding any provision to the contrary in this Agreement, the Recipient may also disclose the Discloser’s Confidential Information to the extent required by a government body, court of law, or other valid legal authority provided that the Recipient uses commercially reasonable efforts to: (a) promptly notify the Discloser in advance of such disclosure, and (b) comply with the Discloser’s reasonable requests regarding its efforts to oppose the disclosure. Notwithstanding the foregoing, subsections (a) and (b) above will not apply if the Recipient determines that complying with (a) and (b) could (i) result in a violation of the legal order requiring disclosure, and/or (ii) obstruct a governmental investigation. As between the parties, You are responsible for responding to all third-party requests concerning Your and Users’ use of the Service Offerings.

6. Suspension.

6.1.   Generally. Infrascale may Suspend Your or any User’s right to access or use all or any portion of the Service Offerings if Infrascale determines:

(a) Your or any User’s use of the Service Offerings (i) poses a security risk to the Service Offerings or any third party, (ii) could adversely impact Infrascale systems, the Service Offerings, or the systems or Content of any other Infrascale customer, (iii) could subject Infrascale, its affiliates, or any third party to liability, or (iv) could be fraudulent;

(b) You or any User is in breach of this Agreement, or any User is in breach of the Terms of Service or other applicable terms;

(c) You fail to take necessary actions as described in the Terms of Service;

(d) It is required to Suspend to comply with applicable law;

(e) You have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of Your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or

(f) Infrascale wishes to Suspend a Trial Service pursuant to the Terms of Service.

Infrascale will eliminate any such Suspension once the circumstances giving rise to the Suspension have been resolved. At Your request, unless prohibited by applicable law, Infrascale will notify You of the basis for the Suspension as soon as is reasonably possible.

6.2.   Effect of Suspension. If Infrascale Suspends Your or any User’s right to access or use all or any portion of the Service Offerings:

(a) You remain responsible for all Fees and charges You incur during the period of Suspension; and

(b) You will not be entitled to any service credits under the Service Level Agreement for any period of Suspension.

7. Term; Termination.

7.1.   Term. This Agreement will become effective upon the earlier of (a) Your execution of an Order, (b) Your or any User’s use of any Service, or (c) when You indicate Your acceptance of this Agreement (during Account creation or otherwise) and, unless earlier terminated in accordance with the terms of this Agreement, will remain in effect until the date on which Your last active subscription to a Service expires. Any notice of termination of this Agreement by either party to the other must include a Termination Date that complies with the notice periods in Section 7.2.

7.2.   Termination for Cause.

(a) By Either Party. Either party may terminate this Agreement for cause if the other party is in material breach of this Agreement and, to the extent curable (other than a default in payment), such material breach remains uncured for a period of thirty (30) days from receipt of written notice by the other party.

(b) By Infrascale. Infrascale may also terminate this Agreement immediately upon notice to You for cause (i) if Infrascale has the right to Suspend under Section 6.1(a-e), (ii) if the agreement between Infrascale and a third-party partner who provides software or other technology Infrascale uses to provide the Service Offerings expires, terminates, or requires Infrascale to change the way it provides the software or other technology as part of the Services, or (iii) in order to comply with applicable law or requests of governmental entities.

7.3.   Effect of Termination.

(a) Service Term. Upon expiration or termination of a Service Term:

(i) all of Your and Users’ rights under the specific Order terminate immediately, and You and Users will not be able to access Your Content provided in connection with the specific Order except as expressly set forth in Section 7.3(c);

(ii) You remain responsible for all Fees and charges You have incurred under the specific Order through the date of expiration or termination of such Order and are responsible for any Fees and charges You incur during the post-termination period described in Section 7.3(c); and

(iii) You will immediately obtain possession of all Hardware provided under the specific Order by or on behalf of Infrascale (whether provided to You or Users) and return such Hardware, along with all accessories, to Infrascale in the same condition as that in which it was provided (less reasonable wear and tear). In the event the Hardware is not immediately returned in the above-described condition, You agree You shall promptly pay to Infrascale the actual cost of the Hardware less Depreciation. “Depreciation” shall be calculated by multiplying the actual cost of the Hardware on the date of delivery by the Decline in Value, where the “Decline in Value” is equivalent to twenty-five percent (25%) per full year of Your Service Term for each of the first three (3) years following delivery of such Hardware, not to exceed seventy-five percent (75%). By way of example only, if Hardware is delivered on June 1, 2021 and returned to Infrascale on March 1, 2023, the Depreciation for such Hardware shall be calculated by multiplying the actual cost for such Hardware by twenty-five percent (25%).

(b) Agreement. Upon termination of this Agreement:

(i) You will immediately return or, if instructed by Infrascale, destroy all Infrascale Content in Your possession and cause all Users to do the same;

(ii) upon request, each party will return or destroy all Confidential Information of the other party; and

(iii) the following Sections shall survive termination: Sections 1, 3.2, 3.5 (a-b), 4.2-4.6, 5, 7.3, and 8 through 11.

(c) Post-Termination. Unless Infrascale terminates a specific Order or this Agreement for cause, during the forty-five (45) days immediately following termination of the specific Order or this Agreement, whichever occurs first (the “Retrieval Period”), Infrascale will not take action to remove any of Your Content from the Infrascale systems as a result of the termination and will allow You to retrieve Your Content from the specific Services; provided, the Retrieval Period for Infrascale Cloud Application Backup (“ICAB”) shall be five (5) days following termination of the ICAB Service Terms. Infrascale is not responsible for the availability or accessibility of Your Content following the expiration of the Retrieval Period. You’re solely responsible for managing the download of Your and Your end users’ Content, and Infrascale will have no liability if You fail to download such Content prior to termination or during the Retrieval Period.

For clarity, termination of this Agreement also results in the termination of all Orders. Further, termination or expiration of this Agreement or any Order(s) will not release You from the obligation to make payment of all amounts accrued or due and payable to Infrascale under the specific Order(s) prior to the effective date of termination or expiration, and upon termination for any reason other than due to an uncured breach by Infrascale, all future amounts due under all terminated Orders shall be accelerated and become due and payable immediately (including amounts due for all years of a multi-year subscription or multi-year renewal), regardless of whether previously invoiced. For any use of the Services after termination of the specific Order, the terms of this Agreement will apply and You agree to pay the Fees applicable to such use except solely with respect to Your authorized access to download Your Content under such specific Order.

8. Disclaimers.

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW (A) THE SERVICE OFFERINGS AND THIRD-PARTY PRODUCTS ARE PROVIDED AND DISTRIBUTED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND WHATSOEVER, (B) INFRASCALE, ITS AFFILIATES, SUPPLIERS AND LICENSORS DO NOT MAKE ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND SPECIFICALLY DISCLAIM ANY AND ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION (I) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY AND QUIET ENJOYMENT, AND (II) WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (C) INFRASCALE, ITS AFFILIATES, SUPPLIERS AND LICENSORS ARE NOT RESPONSIBLE OR LIABLE FOR THE DELETION OF OR FAILURE TO STORE ANY CONTENT, DATA AND OTHER COMMUNICATIONS MAINTAINED OR TRANSMITTED THROUGH USE OF THE SERVICES, (D) YOU AND USERS ARE SOLELY RESPONSIBLE FOR SECURING AND BACKING UP YOUR CONTENT, AND (E) INFRASCALE, ITS AFFILIATES, SUPPLIERS AND LICENSORS DO NOT WARRANT THAT THE SERVICE OFFERINGS OR THIRD-PARTY PRODUCTS WILL BE UNINTERRUPTED, SECURE, ERROR-FREE, OR FREE OF HARMFUL COMPONENTS OR THAT THE SERVICE OFFERINGS OR THIRD-PARTY PRODUCTS ARE SUITABLE FOR COMPLIANCE WITH DOCUMENT RETENTION OR OTHER LEGAL REQUIREMENTS. THE SERVICE OFFERINGS AND THIRD-PARTY PRODUCTS ARE NOT DESIGNED OR INTENDED FOR HIGH RISK ACTIVITIES. IN NO EVENT WILL INFRASCALE, ITS AFFILIATES, SUPPLIERS, OR LICENSORS BE LIABLE FOR ANY LOSS, LIABILITY, DAMAGES, OR CLAIMS RELATED TO ANY REGULATORY OBLIGATIONS YOU OR ANY USER MAY HAVE RELATED TO YOUR CONTENT. YOU ACKNOWLEDGE THAT INFRASCALE, ITS AFFILIATES, SUPPLIERS AND LICENSORS DO NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE OFFERINGS AND THIRD-PARTY PRODUCTS MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. INFRASCALE, ITS AFFILIATES, SUPPLIERS AND LICENSORS ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

9. Limitation of Liability.

INFRASCALE, ITS AFFILIATES, SUPPLIERS AND LICENSORS WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY SERVICE OFFERINGS OR THIRD-PARTY PRODUCTS FURNISHED OR TO BE FURNISHED UNDER THIS AGREEMENT OR THE USE THEREOF, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. FURTHER, NEITHER INFRASCALE NOR ANY OF ITS AFFILIATES, SUPPLIERS, OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR OR ANY USERS’ INABILITY TO USE THE SERVICE OFFERINGS OR THIRD-PARTY PRODUCTS, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR AN ORDER, OR YOUR OR ANY USERS’ ACCESS OR USE OF THE SERVICE OFFERINGS OR THIRD-PARTY PRODUCTS, (II) DISCONTINUATION OF ANY OR ALL OF THE SERVICE OFFERINGS, OR, (III) WITHOUT LIMITING ANY OBLIGATIONS UNDER THE SERVICE LEVEL AGREEMENT, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICE OFFERINGS FOR ANY REASON, (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR OR ANY USERS’ ACCESS OR USE OF THE SERVICE OFFERINGS, OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS, OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. IN ANY CASE, EXCEPT FOR PAYMENT OBLIGATIONS UNDER SECTION 10.2, THE AGGREGATE LIABILITY OF INFRASCALE, ITS AFFILIATES, SUPPLIERS AND LICENSORS UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT YOU ACTUALLY PAY INFRASCALE UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS BEFORE THE LIABILITY AROSE. THE LIMITATIONS IN THIS SECTION 9 APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

10. Indemnification.

10.1.   General. You will defend, indemnify, and hold harmless Infrascale, its affiliates, suppliers and licensors, and each of their respective employees, officers, directors, and representatives (collectively, the “Infrascale Indemnified Parties”) from and against any Losses arising out of or relating to any third-party claim concerning (a) Your or any Users’ access or use of the Service Offerings (including any activities under Your Account and use by Your employees and personnel), (b) breach of this Agreement or violation of applicable law by You, Users, or Your Content, (c) Your and Users’ acts or omissions, or (d) a dispute between You and any User. You will reimburse Infrascale for reasonable attorneys’ fees, as well as its employees’ and contractors’ time and materials spent responding to any third-party subpoena or other compulsory legal order or process associated with third-party claims described in (a) through (c) above at its then-current rates.

10.2.   Intellectual Property.

(a) Infrascale will defend You and Your employees, officers, and directors (collectively, “Your Indemnified Parties”) against any third-party claim to the extent based solely on an allegation that the Services or Infrascale Brand Features infringe or misappropriate that third party’s intellectual property rights, and will pay the amount of any adverse final judgment or settlement. Notwithstanding the foregoing, Infrascale will have no obligations or liability under this Section or otherwise with respect to any claim or award to the extent arising from (i) a combination of the Services or Infrascale Brand Features with any other product, service, software, data, method, or content, including Your Content, (ii) use of the Services for a purpose or in a manner not permitted by this Agreement, or in a manner for which the Services were not designed, (iii) any modification of the Services or Infrascale Brand Features made without express written approval by Infrascale, (iv) Your or any Users’ use of non-current or unsupported versions of the Services or Infrascale Brand Features, (v) breach of this Agreement by any of Your Indemnified Parties, or (vi) any Trial Service. In addition, Infrascale will have no obligations or liability arising from Your or any User’s use of the Services after Infrascale has notified You to discontinue such use.

(b) You will defend and indemnify the Infrascale Indemnified Parties against any third-party claim alleging that any of Your Content or Your Brand Features infringes or misappropriates that third party’s intellectual property rights, and will pay the amount of any adverse final judgment or settlement.

(c) If the Services become, or in the opinion of Infrascale may become, the subject of a third-party infringement or misappropriation claim, then Infrascale may, at its sole option and expense (i) procure the right for You to continue using the Services, (ii) modify the Services to make them non-infringing without materially reducing their functionality, or (iii) replace the Services with a non-infringing, functionally equivalent alternative. If Infrascale believes none of the foregoing remedies are commercially reasonable, then Infrascale may Suspend or terminate Your and all Users’ right to access and use the impacted Services. In the event of termination, Infrascale will refund any pre-paid Fees (less any discounts provided and without consideration of any prepayment discount applied) for the Services pro-rated for the remaining Service Term.

(d) The remedies provided in this Section 10.2 are the sole and exclusive remedies for any third-party claims of infringement or misappropriation of intellectual property rights by the Services, either party’s Brand Features, or Your Content.

10.3.  Process. The obligations under this Section 10 will apply only if the party seeking defense or indemnity (the “Indemnified Party”) (a) provides the other party (the “Indemnifying Party”) prompt written notice of the claim, (b) provides the Indemnifying Party with sole control over the defense and settlement of the claim, and (c) reasonably cooperates with the Indemnifying Party (at the Indemnifying Party’s expense) in the defense and settlement of the claim. In no event will the Indemnifying Party agree to any settlement of any claim that requires the Indemnified Party to admit liability or pay money without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld, conditioned, or delayed.

10.4.   Indemnity for Third-Party Products. To the extent required or permitted by agreements between Infrascale and the providers of Third-Party Products, Infrascale will pass through to You rights to indemnification received with respect to Third-Party Products, if any. Notwithstanding the foregoing, You acknowledge that Infrascale is not responsible for the fulfillment of any Third-Party Product indemnities or for issues attributable to use of Third-Party Products.

11. General Provisions.

11.1.   Publicity. Infrascale may use Your name and logo on the Site and marketing materials solely to identify You as an Infrascale customer and provided such use does not reveal any of Your Confidential Information.

11.2.   Disputes.

(a) Generally. Notwithstanding any other provisions in this Agreement, and except as otherwise set forth in this Section, if either You or Infrascale has any dispute, controversy, or claim, whether founded in contract, tort, statutory, or common law, concerning, arising out of, or relating to this Agreement or the Service Offerings, including any claim regarding the applicability, interpretation, enforceability, scope, validity, or formation of this arbitration clause and/or this Agreement (each of the foregoing, a “Legal Claim”) that cannot be resolved directly between You and Infrascale, then such Legal Claim will be settled by confidential, binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with the then-current Commercial Arbitration Rules of the AAA (the “AAA Rules”). The award of the arbitrator shall be accompanied by a reasoned opinion. Judgement on the award may be entered in any court of competent jurisdiction. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. The arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. This Section shall not preclude either party from seeking (i) equitable relief in accordance with the Terms of Service; or (ii) relief from a small claims court for disputes or claims within the scope of such court’s jurisdiction.

(b) Process. To initiate an arbitration proceeding, an arbitration claim must be submitted by the claimant (the “Claimant”) to the AAA, and a written Demand for Arbitration must be provided to the other party (the “Opposing Party”), pursuant to the AAA Rules. Arbitration hearings will be held in Fairfax County, Virginia or any other location that is mutually agreed upon by You and Infrascale. A single arbitrator will be mutually selected by You and Infrascale and shall be (i) a practicing attorney licensed to practice law in Virginia or a retired judge; and (ii) selected from the arbitrators on the AAA’s roster of commercial dispute arbitrators who have a background in finance, technology, and/or online commerce law (or if there are no such arbitrators, then from the arbitrators on the AAA’s roster of commercial dispute arbitrators) (collectively, the “Arbitrator Requirements”). If You and Infrascale cannot mutually agree upon an arbitrator within ten (10) days of the Opposing Party’s receipt of the Demand for Arbitration from the Claimant, then the AAA shall appoint a single arbitrator that satisfies the Arbitrator Requirements. The arbitrator will follow the law and will give effect to any applicable statutes of limitation. Payment of filing, administration and arbitrator fees will be governed by the AAA’s rules.

11.3.   Governing Law. Except as otherwise expressly provided herein, all claims shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, exclusive of conflict or choice of law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The courts in some countries will not apply U.S. law to some types of disputes. If You reside in one of those countries, then where U.S. law is excluded from applying, the laws of Your country of residence will apply.

11.4.  Modifications. Infrascale may modify this Agreement at any time, in our sole discretion. If we make any material modifications to this Agreement, we shall inform You by posting the modified terms at https://www.infrascale.com/legal/customer-agreement/. It is Your responsibility to check periodically for modifications to this Agreement. The modified Agreement will be effective upon Your next subscription renewal following posting of the updated terms. Your continued access or use of the Service Offerings after such renewal confirms Your consent to be bound by this Agreement, as amended. If You do not agree to be bound by the modified terms, then You may not continue to use the Service Offerings.

11.5.   Entire Agreement. This Agreement contains the entire understanding between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous communications, representations, warranties, proposals, negotiations, discussions, understandings, or agreements (whether oral, written, implied, or otherwise) between the parties with respect to the subject matter hereof. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation, or warranty, except those expressly set out in this Agreement. The terms located at any URL referenced in this Agreement and an Order are incorporated by reference into this Agreement. After this Agreement is effective, Infrascale may provide an updated URL in place of any URL in this Agreement. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Order, the terms at any URL, and this Agreement. Any additional or conflicting terms contained in any purchase order, proposal, or other document provided by You shall be deemed rejected by Infrascale without need of further notice of objection, even if such document is acknowledged or accepted by Infrascale, and regardless of any statement to the contrary which may be contained therein, and shall be of no effect or in any way binding upon Infrascale. Except as otherwise expressly set forth herein, any amendment to this Agreement must be in writing, signed by both parties, and expressly state that it is amending this Agreement.

11.6.   Third-Party Beneficiaries. Infrascale shall be a third-party beneficiary of any contract between You and Users with respect to the Service Offerings, and shall be entitled to enforce the obligations therein. Other than as expressly provided herein, no third-party beneficiaries are intended or will be construed as created by this Agreement.

11.7.   Notices.

(a) To You. Infrascale may provide any notice to You under this Agreement by (i) posting a notice on the Infrascale Site or Dashboard, or (ii) sending a message to the email address then associated with Your Account. Notice Infrascale provides by posting on the Infrascale Site or Dashboard will be effective upon posting and notice Infrascale provides by email will be effective when the email is sent. It is Your responsibility to keep Your email address current. You will be deemed to have received any email sent to the email address then associated with Your Account when Infrascale sends the email, whether or not You actually receive the email.

(b) To Infrascale. To provide Infrascale notice under this Agreement, You must do so via personal delivery, overnight courier or registered or certified mail to Infrascale, Inc., 12110 Sunset Hills Road, Suite 600, Reston, VA 20190, Attention: Legal Department. Infrascale may update its address for notice by providing notice of such change pursuant to subsection (a) above. Notice provided by personal delivery will be effective immediately. Notice provided by overnight courier will be effective one (1) business day after it is sent. Notice provided registered or certified mail will be effective three (3) business days after it is sent.

11.8.   Trade Compliance. In connection with this Agreement, each party will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations, including all such laws and regulations that apply to a U.S. company, such as the Export Administration Regulations, the International Traffic in Arms Regulations, and economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, You are solely responsible for compliance related to the manner in which You choose to use the Service Offerings, including Your transfer and processing of Your Content, the provision of Your Content to Users, and the geographic region in which any of the foregoing occur. You represent and warrant that You and any party that owns or controls You are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority.

11.9.   U.S. Government Rights. The Service Offerings are provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Service Offerings. If You are using the Service Offerings on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with Federal law, You will immediately discontinue Your use of the Service Offerings. The terms “commercial item” “commercial computer software,” “commercial computer software documentation,” and “technical data” are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.

11.10.   Questions. If You have any questions regarding this Agreement, please contact Infrascale at legal@infrascale.com.

Revision Date
Last revised June 5, 2023.
© Infrascale, Inc. All Rights Reserved.