Master Subscription Agreement (MSA)

Date: July 6, 2022

This Master Subscription Agreement (“Agreement”) governs your acquisition and  use of Birch Grove Software, Inc. dba ActivTrak’s (“ActivTrak”) services.  Acceptance of this Agreement, whether by click-through, electronic signature,  or by executing an Order Form that references this Agreement, you (hereafter  “Customer” or “you”) agree to the terms of this Agreement. In addition, the Data Processing Agreement is incorporated herein by reference. If you are  entering into this Agreement on behalf of a company or other legal entity, you  represent that you have the authority to bind such entity and its Affiliates to this  Agreement. If you do not have such authority, or if you do not agree with these  terms and conditions, you must not accept this Agreement and may not use the  Service. This Agreement is effective as of that date that you accept it. Customer  and ActivTrak hereby agree as follows:

  1. Definitions.

1.1. “Affiliate” means any entity that directly or indirectly controls, is controlled  by, or is under common control with the Customer entity signing this Agreement.  “Control,” for purposes of this definition, means direct or indirect ownership or  control of more than 50% of the voting interests of the subject entity.

1.2. “Customer Data” means all electronic data submitted by or on behalf of  Customer to the Service.

1.3. “Documentation” means ActivTrak’s knowledge base, user guides and  other end user documentation for the Service available on the online help  feature of the Service, as may be updated by ActivTrak from time to time,  including without limitation the materials available at https://support.activtrak.com/.

1.4. “Non-ActivTrak Application” means a web-based, offline, mobile, or other  software application functionality that is provided by Customer or a third party  and interoperates with the Service.

1.5. “Order Form” means an ordering document that specifies the Service and  Support Services purchased by Customer under this Agreement that is entered

into by Customer (or any Affiliate) and ActivTrak (or any Affiliate). Order Forms  are accepted by Customer upon signature of an electronic document sent  directly to Customer or upon click-thru acceptance of our online agreement.  Order Forms shall be subject solely to and incorporate by reference the terms of  this Agreement. By entering into an Order Form hereunder, an Affiliate agrees to  be bound by the terms of this Agreement.

1.6. “Service” means the products and services purchased by Customer and  provided by ActivTrak, as specified on an Order Form. “Service” excludes Non ActivTrak Applications.

1.7. “Support Services” means the support services provided by ActivTrak in  accordance with ActivTrak’s support practices made generally available to its  customers and as identified in the Order Form.

1.8. “Term” has the meaning set forth in Section 11.1.

1.9. “Users” means individuals who are authorized by Customer to use the  Service, for whom a subscription to the Service has been procured. Users may  include, for example, Customer and Customer’s Affiliates employees,  consultants, clients, external users, contractors, agents, and third parties with  which Customer does business.

2. Services.

2.1. ActivTrak’s Obligations. ActivTrak shall make the Service available to  Customer pursuant to this Agreement and all Order Forms during the Term, and  grants to Customer a limited, non-sublicensable, non-exclusive, non-transferable  right during the Term to allow its Users to access and use the Service in  accordance with the Documentation, solely for Customer’s business purposes.  ActivTrak shall be permitted to make changes to the functionality of the Service, including the discontinuance or addition of any features of the Service in its sole discretion, provided that ActivTrak will provide at least ninety (90) days’ notice to the Customer of any material changes to the functionality of the Service, as determined in ActivTrak’s sole reasonable discretion.

During the Term, the functionality of the Service will not materially decrease.  Customer agrees that its purchase of the Service is neither contingent upon the  delivery of any future functionality or features nor dependent upon any oral or  written public comments made by ActivTrak with respect to future functionality  or features.

2.2. Customer’s Obligations. Customer is responsible for all activities conducted  under its and its Users’ logins on the Service. Customer shall use the Service in  compliance with applicable law and shall not: (i) copy, rent, sell, lease,

distribute, pledge, assign, or otherwise transfer, or encumber rights to the  Service, or any part thereof, or make it available to anyone other than its Users;  (ii) provide any Data and use Services, except specifically in accordance with  ActivTrak’s Privacy Policy, Data Processing Addendum, and Acceptable Use  Policy, (iii) send or store infringing or unlawful material in connection with the  Service; (iv) send or store viruses, worms, time bombs, Trojan horses and other  harmful or malicious code, files, scripts, agents or programs to the Service; (v)  attempt to gain unauthorized access to, or disrupt the integrity or performance  of, the Service or the data contained therein; (vi) modify, copy or create  derivative works based on the Service, or any portion thereof; (vii) access the  Service for the purpose of building a competitive product or service or copying  its features or user interface; or (viii) delete, alter, add to or fail to reproduce in  and on the Service the name of ActivTrak and any copyright or other notices  appearing in or on the Service or which may be required by ActivTrak at any  time. For avoidance of doubt, Customer is strictly prohibited collecting Customer  Data through the Software on greater than the number of devices authorized in  the Order Form. ActivTrak’s direct competitors are prohibited from accessing the Services, except with ActivTrak prior consent. Furthermore, the Services may not be accesses for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

Any use of the Service in breach of this Agreement, Documentation or Order  Forms, by Customer or Users that in ActivTrak’s judgment threatens the security,  integrity or availability of the Service, may result in ActivTrak’s immediate  suspension of the Service; however, ActivTrak will use commercially reasonable  efforts under the circumstances to provide Customer with notice and an  opportunity to remedy such violation or threat prior to such suspension.

2.3. Usage Limits. Services are subject to usage limits specified in Documentation. If Customer exceeds a contractual usage limit, ActivTrak may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding ActivTrak’s efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order Form for additional quantities of the applicable Services promptly upon ActivTrak’s request, and/or pay any invoice for excess usage in accordance with Section 6.1 below.

2.4 Customer Affiliates. Customer Affiliates may purchase and use Service  subscription, subject to the terms of this Agreement by executing Order Forms or  Statements of Work hereunder that incorporate by reference the terms of this  Agreement, and in each such case, all references in this Agreement to  Customer shall be deemed to refer to such Customer Affiliate for purposes of  such Order Form or Statements of Work.

3. Security, and Support.

3.1. Security. ActivTrak shall: (i) maintain industry standard administrative,  physical, and technical safeguards to protect the security, confidentiality and  integrity of the Service, Customer Data and Confidential Information; and (ii)  access and use the Customer Data solely to perform its obligations in  accordance with the terms of this Agreement, and as otherwise expressly

permitted in this Agreement (“Security Program”). Such Security Program will  conform with the ActivTrak security protocols.

3.2. Support Services. During the Term, ActivTrak shall provide Support Services to  Customer in accordance with ActivTrak’s then-current ActivTrak support policy,  and as identified in an Order Form.

4. Confidentiality.

Each party (“Recipient”) may, during the course of its provision and use of the  Service hereunder, receive, have access to, and acquire knowledge from  discussions with the other party (‘Discloser”) which may not be accessible or  known to the general public, such as technical and business information  concerning hardware, software, designs, specifications, techniques, processes,  procedures, research, development, projects, products or services, business  plans or opportunities, business strategies, finances, costs, vendors, penetration  test results and other security information; defect and support information and  metrics; and first and third party audit reports and attestations (“Confidential  Information”). Confidential Information shall not include, and shall cease to  include, as applicable, information or materials that (a) were generally known to  the public on the Effective Date; (b) become generally known to the public  after the Effective Date, other than as a result of the act or omission of the  Recipient; (c) were rightfully known to the Recipient prior to its receipt thereof  from the Discloser; (d) are or were disclosed by the Discloser generally without  restriction on disclosure; (e) the Recipient lawfully received from a third party  without that third party’s breach of agreement or obligation of trust; or (f) are  independently developed by the Recipient as shown by documents and other  competent evidence in the Recipient’s possession. The Recipient shall not: (i)  use any Confidential Information of the Disclosure for any purpose outside the  scope of this Agreement, except with the Discloser’s prior written permission, or  (ii) disclose or make the Discloser’s Confidential Information available to any  party, except those of its employees, contractors, and agents that have signed  an agreement containing disclosure and use provisions substantially similar to  those set forth herein and have a “need to know” in order to carry out the  purpose of this Agreement. Each party agrees to protect the confidentiality of  the Confidential Information of the other party in the same manner that it  protects the confidentiality of its own proprietary and confidential information of  like kind, but in no event shall either party exercise less than reasonable care in

protecting such Confidential Information. If the Recipient is compelled by law to  disclose Confidential Information of the Disclosure, it shall provide the Disclosure  with prior notice of such compelled disclosure (to the extent legally permitted)  and reasonable assistance, at the other party’s cost, if the other party wishes to  contest the disclosure. The obligations set forth in Section 3.1 and not this Section  4 apply to Customer Data.

5. Ownership, Feedback, and Aggregated Data.

5.1. Customer Data. As between ActivTrak and Customer, Customer owns its  Customer Data. Customer grants to ActivTrak, its Affiliates and applicable  contractors a worldwide, limited-term license to host, copy, transmit and display  Customer Data, as reasonably necessary for ActivTrak to provide the Service in  accordance with this Agreement. Subject to the limited licenses granted herein,  ActivTrak acquires no right, title or interest from Customer or Customer’s licensors  under this Agreement in or to any Customer Data. Customer shall be responsible  for the accuracy, quality and legality of Customer Data and the means by  which Customer acquired Customer Data. ActivTrak shall use Customer Data  solely in accordance with its Privacy Policy. In addition, ActivTrak agrees to the  terms and conditions of the Data Processing Agreement, which is incorporated  herein by reference.  ActivTrak disclaims any responsibility for disclosure, modification or deletion of Customer Data resulting from access or use of Non-ActivTrak Applications.

5.2 Blind Data. ActivTrak may collect, develop, create, extract, compile,  synthesize, analyze and commercialize statistics, benchmarks, measures and  other information based on Aggregated Data (collectively, “Blind Data”). Blind  Data will be owned solely by ActivTrak and may be used for any lawful business  purpose without a duty of accounting to Customer. “Aggregated Data” means  Customer Data that is: (i) anonymized and not identifiable to any person or  entity; (ii) combined with the data of other customers or additional data  sources; and (iii) presented in a way which does not reveal Customer’s identity.

5.3. Feedback. If Customer provides Feedback, Customer grants to ActivTrak a  worldwide, perpetual, irrevocable, sub-licensable, royalty-free, transferable  license to use the Feedback in the Service and any intellectual property  ActivTrak develops. “Feedback” means recommendations, suggestions,  enhancement requests or other feedback or any ideas, technology,  developments, derivative works or other intellectual property related to the  Service or any services or products provided by ActivTrak.

5.4. ActivTrak Ownership of the Service. Except for the rights expressly granted  under this Agreement, ActivTrak and its licensors retain all right, title, and interest  in and to the Service, Documentation, including all related intellectual property  rights inherent therein. No rights are granted to Customer hereunder other than  as expressly set forth in this Agreement.

5.5. Statistical Usage Data. ActivTrak owns the statistical usage data derived  from the operation of the Service, including data regarding web applications  utilized in connection with the Service, configurations, log data, and the  performance results for the Service (“Usage Data”). Nothing herein shall be  construed as prohibiting ActivTrak from utilizing the Usage Data to optimize and  improve the Service or otherwise operate ActivTrak’s business; provided that if  ActivTrak provides Usage Data to third parties, such Usage Data shall be  anonymized and presented in the aggregate so that it will not disclose the  identity of Customer or any User(s) to any third party.

6. Fees, Expenses, and Taxes.

6.1. Fees. Customer shall pay ActivTrak the fees set forth in the applicable Order Form (“Fees”) in accordance with this Agreement and the Order Form. If not otherwise specified on an Order Form, Fees will be due upon receipt of invoice. Except as otherwise specifically provided in this Agreement, all Fees paid and payable to ActivTrak hereunder are non-cancelable and non-refundable. This includes new license purchases and renewals. If not otherwise specified on an Order Form, the service auto-renews at the end of each term and proper notice from Customer to cancel is required as set forth in Section 11.1. If Customer fails to pay any amounts due under this Agreement by the due date, in addition to any other rights or remedies it may have under this Agreement or by matter of law, ActivTrak reserves the right to suspend and/or the Service immediately.

 

6.2. Taxes. Fees do not include any local, state, federal or foreign taxes, levies,  duties or similar governmental assessments of any nature, including value added, use or withholding taxes (collectively, “Taxes”). Customer is responsible  for paying all Taxes associated with its purchases hereunder (excluding taxes  based on ActivTrak’s net income or property) unless Customer provides  ActivTrak with a valid tax exemption certificate authorized by the appropriate  taxing authority. The limitations set forth in Section 8 shall not apply to  Customer’s payment obligations under this Section 6.

7. Warranties and Disclaimer.

7.1. Warranties. (a) Service. ActivTrak warrants that during the Term: (i) the  Service shall perform materially in accordance with the applicable  Documentation, (ii) ActivTrak shall make commercially reasonable efforts to  make the Service available to Customer 24 hours a day, 7 days a week, every  day of each year (except for any unavailability caused by a planned  maintenance window that has been communicated in advance the Customer  or a Force Majeure event); (iii) ActivTrak will employ industry-standard measures  to test the Service to detect and remediate viruses, Trojan horses, worms, logic  bombs, or other harmful code or programs designed to negatively impact the  operation or performance of the Service, and (iv) it owns or otherwise has  sufficient rights in the Service to grant to Customer the rights to use the Service  granted herein. As Customer’s exclusive remedy and ActivTrak’s entire liability  for a breach of the warranties set forth in this Section 7.1(a), ActivTrak shall use  commercially reasonable efforts to correct the non-conforming Service at no  additional charge to Customer, and in the event ActivTrak fails to successfully  correct the Service within a reasonable time of receipt of written notice from  Customer detailing the breach, then Customer shall be entitled to terminate the  applicable Service and receive an immediate refund of any prepaid, unused  Fees for the non-conforming Service. The remedies set forth in this subsection  shall be Customer’s sole remedy and ActivTrak’s sole liability for breach of these  warranties. The warranties set forth in this Section shall apply only if the  applicable Service has been utilized in accordance with the Documentation,  this Agreement and applicable law.

7.2. Disclaimer. EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH UNDER  SECTION 7.1, ACTIVTRAK AND ITS SUPPLIERS HEREBY DISCLAIM ALL (AND HAVE  NOT AUTHORIZED ANYONE TO MAKE ANY) WARRANTIES RELATING TO THE  SERVICE OR OTHER SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED,  INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF NON-INFRINGEMENT OF

THIRD PARTY RIGHTS, TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR  PURPOSE. THE PARTIES ARE NOT RELYING AND HAVE NOT RELIED ON ANY  REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE SUBJECT  MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED, EXCEPT FOR THE WARRANTIES  SET FORTH UNDER SECTION 7.1. ACTIVTRAK MAKES NO WARRANTY REGARDING  ANY NON-ACTIVTRAK APPLICATION WITH WHICH THE SERVICE MAY  INTEROPERATE.

8. Limitation of Liability.

8.1. IN NO EVENT WILL EITHER PARTY’S (OR ACTIVTRAK’S THIRD PARTY LICENSORS’)  BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS  AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY  CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR ERROR OR  INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA, (B) FOR  COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, RIGHTS, OR  TECHNOLOGY, (C) FOR ANY LOST PROFITS OR REVENUES, OR (D) FOR ANY  INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES,  WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH  DAMAGE.

8.2. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER  WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT  EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER  FOR THE SERVICE GIVING RISE TO THE LIABILITY IN THE TWELVE-MONTH PERIOD  PRECEDING THE FIRST INCIDENT OUT WHICH THE LIABILITY AROSE. THE FOREGOING  LIMITATION SHALL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND  REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER’S AND  CUSTOMER’S AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE ‘FEES’ SECTION  ABOVE.

9. Indemnification.

9.1. ActivTrak Indemnification Obligation. Subject to Section 9.3, ActivTrak will  defend Customer from any and all claims, demands, suits or proceedings  brought against Customer by a third party alleging that the Service, as provided  by ActivTrak to Customer under this Agreement infringe any third party patent,  copyright, or trademark or misappropriate any trade secret of any third party  (each, an “Infringement Claim”). ActivTrak will indemnify Customer for all  damages, costs, reasonable attorneys’ fees finally awarded by a court of

competent jurisdiction, or paid to a third party in accordance with a settlement  agreement signed by ActivTrak, in connection with an Infringement Claim. In  the event of any such Infringement Claim, ActivTrak may, at its option: (i) obtain  the right to permit Customer to continue using the Service, (ii) modify or replace  the relevant portion(s) of the Service with a non-infringing alternative having substantially equivalent performance within a reasonable period of time, or (iii)  terminate this Agreement as to the infringing Service and refund to Customer  any prepaid, unused Fees for such infringing Service hereunder. Notwithstanding  the foregoing, ActivTrak will have no liability for any Infringement Claim of any  kind to the extent that it results from: (1) modifications to the Service made by a  party other than ActivTrak, (2) the combination of the Service with other  products, processes or technologies (where the infringement would have been  avoided but for such combination), or (3) Customer’s use of the Service other  than in accordance with the Documentation and this Agreement. The  indemnification obligations set forth in this Section 9.1 are ActivTrak’s sole and  exclusive obligations, and Customer’s sole and exclusive remedies, with respect  to infringement or misappropriation of third-party intellectual property rights of  any kind.

9.2. Customer Indemnification Obligation. Subject to Section 9.3, Customer will  defend ActivTrak from any and all claims, demands, suits or proceedings  brought against ActivTrak by a third party alleging a violation of a third party’s  rights arising from Customer’s provision of the Customer Data. Customer will  indemnify ActivTrak for all damages, costs, reasonable attorneys’ fees finally  awarded by a court of competent jurisdiction, or paid to a third party in  accordance with a settlement agreement signed by Customer.

9.3. Indemnity Requirements. The party seeking indemnity under this Section 9  (“Indemnitee”) must give the other party (“Indemnitor”) the following: (a)  prompt written notice of any claim for which the Indemnitee intends to seek  indemnity, (b) all cooperation and assistance reasonably requested by the  Indemnitor in the defense of the claim, at the Indemnitor’s sole expense, and (c)  sole control over the defense and settlement of the claim, provided that the  Indemnitee may participate in the defense of the claim at its sole expense.

10. Customer Mention.

ActivTrak is authorized to use Customer logo and trademark for marketing  purposes, including in press releases, on the website, as a customer reference for prospective customers, and for testimonial content for the  Service.

11. Term, Termination, and Effect of Termination.

11.1. Term. The term of this Agreement commences on the Effective Date and  continues until the stated term in all Order Forms has expired or has otherwise  been terminated. Subscriptions to the Service commence on the date, and are  for a period, as set forth in the applicable Order Form (“Term”). Upon expiration  of the Term, unless otherwise stated on an applicable Order Form, the Service  will automatically renew for additional terms equal in duration to the initial Term  (each a “Renewal Term”), unless and until either party gives the other notice of  non-renewal of at least (30) days prior to the end of the then-current Term or  Renewal Term. If Customer fails to provide at least (30) days notice, the  Customer will be responsible for the full Renewal Term fees.

11.2. Termination. Either party may terminate this Agreement by written notice to  the other party in the event that (i) such other party materially breaches this  Agreement and does not cure such breach within thirty (30) days of such notice,  or (ii) immediately in the event the other party becomes the subject of a petition  in bankruptcy or any other proceeding relating to insolvency, receivership,  liquidation or assignment for the benefit of creditors. Upon any termination for  cause by Customer pursuant to this Section 11.2, ActivTrak will refund Customer  a pro-rata portion of any prepaid Fees that cover the remainder of the  applicable Order Form Term or Renewal Term after the effective date of  termination.

11.3. Retrieval of Customer Data. Prior to the effective date of termination of this  Agreement, Customer may use the export features within the Service to export  Customer Data in .csv, .zip format or send them to a connected Google Drive.  After such effective date of termination, ActivTrak shall have no obligation to  maintain or provide any Customer Data and shall thereafter, unless legally  prohibited, be entitled to delete all Customer Data by deletion of Customer’s  unique instance of the Service; provided. However, ActivTrak will not be required  to remove copies of the Customer Data from its backup media and servers until  such time as the backup copies are scheduled to be deleted in the normal  course of business; provided that in all cases ActivTrak will continue to protect  the Customer Data in accordance with this Agreement. Additionally, during the  Term, Customer may extract Customer Data from the Service using ActivTrak’s  standard web services.

11.4. Effect of Termination. Upon termination of this Agreement for any reason, all  rights and subscriptions granted to Customer including all Order Forms will

immediately terminate and Customer will cease using the Service (except as  otherwise permitted under Section 11.3 (“Retrieval of Customer Data”) and  ActivTrak Confidential Information. Termination for any reason other than  termination for cause by Customer pursuant to Section 11.2(i) shall not relieve  Customer of the obligation to pay all future amounts due under all Order Forms.  The sections titled “Definitions,” “Confidentiality,” “Ownership; Aggregated  Data,” “Fees, Expenses and Taxes,” “Warranty Disclaimer,” “Limitation of  Liability,” “Indemnification,” “Term, Termination, and Effect of Termination,” and  “General” shall survive any termination or expiration of this Agreement.

12. General

12.1. Assignment. Neither the rights nor the obligations arising under this  Agreement are assignable or transferable by Customer or ActivTrak without the  other party’s prior written consent which shall not be unreasonably withheld or  delayed, and any such attempted assignment or transfer shall be void and  without effect. Notwithstanding the foregoing, either party may freely assign this  Agreement in its entirety (including all Order Forms), upon notice and without  the consent of the other party, to an Affiliate or to its successor in connection  with a merger, acquisition, corporate reorganization, or sale of all or substantially  all of its assets, provided that all fees owed and due have been paid.

12.2. Controlling Law, Attorneys’ Fees and Severability. This Agreement and any  disputes arising out of or related hereto shall be governed by and construed in  accordance with the laws of the State of Texas, without giving effect to its  conflicts of laws rules or the United Nations Convention on the International Sale  of Goods. With respect to all disputes arising out of or related to this Agreement,  the parties consent to exclusive jurisdiction and venue in the state and Federal  courts located in Travis County, Texas. In any action to enforce this Agreement  the prevailing party will be entitled to costs and attorneys’ fees. In the event that  any of the provisions of this Agreement shall be held by a court or other tribunal  of competent jurisdiction to be unenforceable, such provisions shall be limited or  eliminated to the minimum extent necessary so that this Agreement shall  otherwise remain in full force and effect and enforceable.

12.3. Notices. All legal notices hereunder shall be in writing and given upon (i)  personal delivery, in which case notice shall be deemed given on the day of  such hand delivery, (ii) by overnight courier, in which case notice shall be  deemed given one (1) business day after deposit with a recognized courier for  U.S. deliveries (or three (3) business days for international deliveries); or iii) by email to an authorized representative of a party.

12.4. Force Majeure. If the performance of this Agreement or any obligation  hereunder (other than obligations of payment) is prevented or restricted by  reasons beyond the reasonable control of a party including but not limited to  Acts of God, computer related attacks, hacking, pandemic, government  regulation or acts of terrorism (a “Force Majeure Event”), the party so affected  shall be excused from such performance and liability to the extent of such  prevention or restriction.

12.5. Equitable Relief. Due to the unique nature of the parties’ Confidential  Information disclosed hereunder, there can be no adequate remedy at law for  a party’s breach of its obligations hereunder, and any such breach may result in  irreparable harm to the non-breaching party. Therefore, upon any such breach  or threat thereof, the party alleging breach shall be entitled to seek injunctive  and other appropriate equitable relief in addition to any other remedies  available to it, without the requirement of posting a bond.

12.6. Independent Contractors. The parties shall be independent contractors  under this Agreement, and nothing herein shall constitute either party as the  employer, employee, agent, or representative of the other party, or both parties  as joint venturers or partners for any purpose. There are no third-party  beneficiaries under this Agreement.

12.7. Export Compliance. Each party represents that it is not named on any U.S.  government list of persons or entities with which U.S. persons are prohibited from  transacting, nor owned or controlled by or acting on behalf of any such persons

or entities, and Customer will not access or use the Service in any manner that  would cause any party to violate any U.S. or international embargo, export  control law, or prohibition.

12.8. Anti-Corruption. Customer agrees that it has not received or been offered  any illegal or improper bribe, kickback, payment, gift, or thing of value from any  of ActivTrak employees or agents in connection with this Agreement.  Reasonable gifts and entertainment provided in the ordinary course of business  do not violate the above restriction. If Customer learns of any violation of the  above restriction, Customer will use reasonable efforts to promptly notify  ActivTrak.

12.9. Entire Agreement. This Agreement together with the Order Form(s)  constitutes the entire agreement between the parties hereto pertaining to the  subject matter hereof, and any and all prior or contemporaneous written or oral

agreements existing between the parties hereto, including any non-disclosure  agreement(s), and related to the subject matter hereof are expressly canceled.  The parties agree that any term or condition stated in Customer’s purchase  order or in any other of Customer’s order documentation (excluding Order  Forms) is void. In the event of any conflict or inconsistency among the following  documents, the order of precedence shall be: (1) the applicable Order Form,  (2) this Agreement, and (3) the Documentation. No modification, amendment  or waiver of any provision of this Agreement will be effective unless in writing  and signed by both parties hereto. Any failure to enforce any provision of this  Agreement shall not constitute a waiver thereof or of any other provision.

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