AGREEMENT TO RESELL CLOUD SERVICES (U.S. AND CANADA)

Transcription

1 AGREEMENT TO RESELL CLOUD SERVICES (U.S. AND CANADA) This Agreement to Resell Cloud Services ( Agreement ) contains the terms and conditions that govern and is entered into by and between Insight Direct USA, Inc. ( Insight ) and the client ( Client) identified in the corresponding Cloud Services Order Form referencing this Agreement. Insight and Client are sometimes referred to herein individually as a Party and together as Parties. This Agreement is effective and Client agrees to be bound by its terms when Client either first accesses the Agreement or upon the first Order Effective Date (defined below), whichever occurs first ( Agreement Effective Date. ) If the person entering into this Agreement is doing so on behalf of a legal entity, such person represents that is has the legal authority to bind such legal entity to this Agreement. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows: SECTION 1. DEFINITIONS Affiliate means any entity that directly or indirectly, controls, is controlled by, or is under common control of or with a Party to this Agreement. Control means having 50% or more of the outstanding equity interests or having, by contract or otherwise, the right and ability to direct management and policies. Applicable Law means any applicable local, state, federal, tribal, foreign, or international law, rule, regulation, ordinance, governmental order, or the like. Cloud Service or Cloud Services means (i) the services and any software or other materials described in the Service Provider Terms, and (ii) any other services to be provided by Service Provider in connection with the services described in the Service Provider Terms, including, without limitation, any implementation services offered by Insight. Fees means the fees for the Cloud Services purchased by Client under this Agreement. First Line Support means taking and logging all support calls and requests for help and/or assistance from Client (both by telephone and by ) and providing assistance as Insight deems appropriate; and determining whether the call requires escalation to Service Provider, and if so, referring the call to Service Provider. High-Risk Applications means life support applications, devices, or facilities; nuclear or chemical applications, devices, or facilities; applications, devices, or facilities related to aircrafts or other modes of mass transportation; or other applications, devices, or facilities in which failure of the Cloud Services, or any part thereof, could lead to death or bodily injury of any person or physical or environmental damage. Insight-Service-Provider Agreement or ISPA means the agreement between Insight and Service Provider relating to the resale of the Cloud Services to Insight s customers, including, without limitation, any order placed by Insight to Service Provider under the ISPA to purchase the applicable Cloud Services for resale to Client. New Versions means new versions or releases of the Cloud Services or Software, including without limitation, any major or minor releases and any version or releases that contain new features or functionality of the Cloud Services for the same edition of the Cloud Services that Service Provider makes generally available to its customer base. Personal Information means information that is identifiable to a particular individual, including but not limited to such person s name, physical address, telephone number, address, social security number, or credit card number. Registered Usage means number of Users, Members and other chargeable units (including, without limitation, domains and IP addresses). Service Level Agreement or SLA means the service levels or service level agreements, if any, set forth in the Service Provider Terms. Service Provider means the entity that provides the subscription based Cloud Services, as described in the Service Provider Terms, offered by Insight under this Agreement. For the purposes of performing or otherwise Page 1 of 14

2 providing the Cloud Services, Service Provider may include, without limitation, affiliates, subcontractors, successors, or assigns. Service Provider Facilities means any infrastructure of Service Provider or its licensors in connection with the provision of the Cloud Services or technical support, including, without limitation, software programs, hardware, data centers, networks, systems, websites, technology, or other facilities or resources provided or operated by, or on behalf of, Service Provider or its licensors in connection with the provision of the Cloud Services. Service Provider Terms means the Service Provider s specific terms and service levels or service level agreements, if any, (collectively, Service Descriptions ) located at as may be amended or otherwise updated unilaterally by the Service Provider from time to time. The Service Provider Terms constitute part of this Agreement. Term means the Initial Term and, if applicable, any Renewal Term, as defined in Section 4.1 (Term of Agreement). U.S. Export Laws means laws, regulations, rules, ordinances, governmental orders, administrative acts, and the like of the U.S. relating to export, including, without limitation, those promulgated, issued, or administered by the U.S. Department of Commerce, the Office of Foreign Assets Control ( OFAC ) of the U.S. Department of the Treasury, U.S. Department of State, and other U.S. governmental authorities. Usage Commitment means the greater of (i) Registered Usage set forth in Exhibit A, or (ii) the then-current Registered Usage as notified by Service Provider to Insight and upon which Service Provider invoices Insight for the applicable invoice period during the applicable Term. User means a person, mailbox, or machine that is using the Service. SECTION 2. SCOPE OF CLOUD SERVICES 2.1 Sale of Cloud Services; Use Restrictions. (a) Order Placement; Description of Cloud Services. Subject to the terms and conditions of this Agreement, Insight will sell to Client the Cloud Services ordered under Exhibit A of this Agreement, attached hereto ( Exhibit A ), pursuant to an electronic Cloud Services Order Form ( Cloud Services Order Form ). Although Client is not required to issue a purchase order ( PO ) in connection with the purchase of Services under this Agreement, if Client issues a PO, such PO shall be deemed to incorporate the terms and conditions of this Agreement, whether or not referenced in the PO, and such PO shall be deemed to be issued for administrative purposes only. Any pre-printed terms or any different or additional terms and conditions sent by Client to Insight, whether as part of, annexed to, or enclosed with a PO, or contained within any other correspondence relating to a PO, shall be deemed void. The Cloud Services sold by Insight under this Agreement will be performed or otherwise provided by Service Provider under the Service Provider Terms. Client expressly acknowledges and agrees that Insight is only re-selling the Cloud Services subject to the terms of this Agreement and that Insight does not itself perform the Cloud Services. AT ANY TIME AFTER THE EFFECTIVE DATE, IF AN AMENDED OR OTHERWISE UPDATED VERSION OF THE SERVICE PROVIDER TERMS BECOMES AVAILABLE, THEN, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, CLIENT AGREES THAT THE AMENDED OR OTHERWISE UPDATED VERSION WILL AUTOMATICALLY BECOME THE SERVICE PROVIDER TERMS FOR THE PURPOSES OF THIS AGREEMENT, AND CLIENT AGREES THAT THAT VERSION WILL CONTROL. CLIENT EXPRESSLY ACKNOWLEDGES AND AGREES THAT CLIENT SHALL BE SOLELY RESPONSIBLE FOR PERIODICALLY REVIEWING SUCH DESIGNATED URL OR A SUCCESSOR URL OF SERVICE PROVIDER TO UNDERSTAND AND PERFORM IN ACCORDANCE WITH SUCH AMENDED OR OTHERWISE UPDATED VERSION. Those Service Descriptions set forth in the Service Provider Terms for any Cloud Services not purchased by Client under this Agreement shall be inapplicable to Client. For the avoidance of doubt, Insight shall not be responsible for any services related to the implementation or configuration of the Cloud Services for Client s use unless otherwise agreed upon by Insight and Client under a separate written agreement. (b) Technical Support. Service Provider will provide technical support for the Cloud Services purchased by Client under this Agreement, and Client shall look to Service Provider for such support. Insight may, either by itself or through its Affiliates, provide First Line Support, from time to time, under the terms and conditions of this Agreement, which it may discontinue at any time at its sole discretion. (c) Use Subject to Terms. Service Provider or its licensors, subcontractors, or suppliers will retain all rights, title, and interests in and to the Cloud Services and the Service Provider Facilities as well as any derivative works thereof, including, without limitation, any intellectual property rights in and to the Cloud Services and the Service Provider Facilities. Client shall not infringe, misappropriate, or otherwise violate such rights, title, or interests. Client s access to, and use of, the Cloud Services shall be subject to the terms and conditions of this Agreement, including, without limitation, the Service Provider Terms. Client shall comply with the Service Provider Terms, Page 2 of 14

3 and Client shall look to Service Provider for compliance of the Service Provider s responsibilities under the Service Provider Terms. IN ADDITION, CLIENT EXPRESSLY ACKNOWLEDGES AND AGREES THAT CLIENT MAY BE SUBJECT TO TERMS AND CONDITIONS AND/OR POLICIES OTHER THAN THOSE SET FORTH OR REFERENCED IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY LICENSE AGREEMENT, SYSTEM-ACCESS TERMS AND CONDITIONS, ACCEPTABLE USE POLICIES, AND/OR PRIVACY POLICIES, THAT MAY BE IMPOSED, FROM TIME TO TIME, BY SERVICE PROVIDER OR ITS LICENSORS UPON CLIENT IN CONNECTION WITH MAKING THE CLOUD SERVICES AVAILABLE TO CLIENT, ALLOWING CLIENT ACCESS TO SERVICES PROVIDER S OR ITS LICENSOR S NETWORKS OR OTHER SYSTEMS, OR OTHERWISE USING THE CLOUD SERVICES (COLLECTIVELY, OTHER CLOUD SERVICE-RELATED TERMS ). Client shall comply with all applicable Other Cloud Service-Related Terms. Client expressly acknowledges and agrees that Insight shall not be liable for any breach by Service Provider of Service Provider s obligations, if any, under any applicable Other Cloud Service-Related Terms or for any loss, damages, costs, or expenses incurred by Client in connection with any actions taken by Service Provider under the applicable Other Cloud Service-Related Terms, including, without limitation, any actions against Client to enforce any provisions therein. Client agrees that the Cloud Services may be provided by Service Provider from any hardware installations forming part of the Cloud Services anywhere in the world and may, at any time, transfer the provision of the Cloud Services from one installation to another, and that Service Provider does not guarantee that any such installation, or part thereof, is dedicated to the sole use of Client. In addition, Client agrees that Service Provider may, at any time, amend the Cloud Services and any documentation relating thereto, including, without limitation, any specifications for the Cloud Services for any reason including, without limitation, legal, safety, business, or technical considerations. (d) Legitimate Business Purposes. Client will use the Cloud Services for its own use and for legitimate business purposes only, and Client shall not resell, sub-lease, sub-rent, or sub-license the Cloud Services to any third party. Client shall comply with all relevant legislation applicable to the use of the internet and shall conform to the protocols and standards published on the internet from time to time and adopted by the majority of internet users. 2.2 Client s Responsibilities. In addition to other duties of Client set forth in this Agreement, Client is responsible for the following: (a) Client will provide a project contact with decision-making authority to support the scope of Cloud Services described in the Service Provider Terms; (b) Client will provide Insight or Service Provider, as the case may be, unrestricted access to internal experts, location(s), all critical systems, applications, workspace and equipment required to perform the implementation in connection with the Cloud Services at Client s site; (c) Client will provide all necessary hardware, software, and tools required for the successful completion of the implementation in connection with the Cloud Services at Client s site prior to the provisioning of the Cloud Services, and Client is responsible for all licensing requirements in connection with such hardware, software, and tools; (d) Client shall ensure that the proper personnel are scheduled to review any implementation related to the provisioning of the Cloud Services at Client s site; (e) Client is responsible for any data migration of existing data; and (f) Client shall provide the information reasonably requested by Insight or Service Provider, including, without limitation, any technical and related information, and any consents that Service Provider may need from Client necessary for Service Provider to enable the Cloud Services and shall otherwise undertake the responsibilities applicable to Client set forth in the Service Provider Terms. In addition, Client agrees to cooperate in good faith in connection with the performance of its obligations under this Agreement. 2.3 Change Procedure. If, after the Effective Date, (i) Client desires to purchase additional Cloud Services from Insight or to increase the Registered Usage pertaining to Client s order, (ii) Client s actual usage exceeds the Usage Commitment applicable to such Term before Client makes such purchase, or (iii) Service Provider increases the Registered Usage pertaining to Client s order if Service Provider determines that Client s actual usage exceeds the Usage Commitment applicable to such Term, then Client shall promptly submit to Insight the form attached to this Agreement as Exhibit B ( Change Request Form ) and provide any information reasonably requested by Insight. The Change Request Form submitted by Client to Insight shall be subject to Insight s written acceptance and may be subject to additional or different terms and conditions, a different pricing rate, and/or additional fees. SECTION 3. FEES AND INVOICING 3.1 Fees. Subject to Section 3.1(b) (Changes in Usage), as consideration for the Cloud Services purchased by Client under this Agreement, Client shall pay Insight the Fees, which will be based upon the applicable pricing rate for such Cloud Services and the Usage Commitment. (a) Pricing Rates. For the Initial Term, the pricing rates for the Cloud Services ordered under this Agreement shall be the rates set forth in Exhibit A, which rates will be based upon the Registered Usage set forth therein. For the Renewal Term, the pricing rates shall be Insight s then-current rates for such Cloud Services at commencement of the then-current Renewal Term (unless otherwise agreed upon by Insight in writing), which rates will be based upon the applicable Usage Commitment at the commencement of the then-current Renewal Term. Notwithstanding anything to the contrary in this Agreement, Insight shall have the right to increase the pricing Page 3 of 14

4 rate during the applicable Term upon providing at least 14 days prior written notice to Client if the Service Provider increases Service Provider s price to Insight with respect to the Cloud Services being provided to Client during such Term. (b) Changes in Usage. (1) Use Increases. As provided in Section 2.3 (Change Procedure), Client shall promptly submit a completed Change Request Form to Insight if, at any time during any Term, the Client s actual usage exceeds the Usage Commitment applicable to such Term, and if requested by Insight, Client shall also promptly submit an additional or amended PO to Insight for such increase. Client expressly acknowledges that Service Provider may monitor Client s actual usage of the Cloud Services, and if Client s actual usage exceeds the Usage Commitment applicable to such Term, Service Provider may increase the Registered Usage pertaining to Client s order under this Agreement accordingly regardless of whether Client requests such increase or whether Client submits an additional or amended PO to Insight for such increase. Once Service Provider notifies Insight and Client detailing such actual usage and provides a revised Registered Usage for Client, or once Insight notifies Client about such revised Registered Usage, Client shall have a period of seven (7) days from receipt of the earlier of such notice in which to notify Insight in the event of a bona fide dispute regarding such revised Registered Usage. Notwithstanding anything to the contrary in this Agreement, if Service Provider increases the Registered Usage pertaining to Client s order under this Agreement, then whether or not Client submits a Change Request Form or an additional or amended PO to Insight for such increase, Insight reserves the right to charge additional Fees and/or make adjustments to subsequent billing to cover Service Provider s charges for the increase in Registered Usage on a pro-rata basis for the remaining part of the thencurrent billing period for Client. Increases in Registered Usage will be in blocks of chargeable units available for purchase from Insight at the time of such increases unless Insight elects to use a different block of chargeable unit based upon Service Provider s assessment of Client s usage increase. Any increase in Registered Usage by Service Provider based upon Client s actual usage, upon which Service Provider invoices Insight for the applicable billing period, will become the then-current Usage Commitment for the applicable Term, whether or not Client submits a Change Request Form or an additional or amended PO to Insight for such increase. If Service Provider increases the Registered Usage based upon Client s actual usage, the Fees payable by Client for the then-current Usage Commitment shall be based upon the pricing rate applicable to the immediately preceding Usage Commitment, unless Insight agrees in writing that a different pricing rate would apply. (2) Use Decreases. During any Term, no reduction in the Usage Commitment applicable to such Term may occur for the purpose of calculating the Fees. If Client s actual usage falls below the applicable Usage Commitment, Client will continue to be charged by Insight based upon the Usage Commitment in effect immediately before the reduction in actual usage and based upon the applicable pricing rate for the then-current Term. 3.2 Invoicing. Charges for the Cloud Services will commence from the date the Cloud Services are made available by Service Provider to Client and are non-refundable except as expressly provided in this Agreement. The Fees will include: (a) recurring charges for that calendar month or other mutually-agreed-upon billing period; and (b) non-recurring set up and other one-off charges (including but not limited to domain set-up charges), if any, for that calendar month or other mutually-agreed-upon billing period. Insight will invoice Client the Fees on a monthly basis or other mutually-agreed-upon billing period. 3.3 Payment Terms. Client must pay all invoices in full within 30 days of the invoice date. The Client may withhold payment of an invoice that contains a material error or is the subject of a material bona fide dispute, provided always that the Client (i) pays all amounts of such invoice that are not subject to such material bona fide dispute or material error by the payment due date and (ii) provides written notice of such dispute, including, without limitation a description of the nature of such dispute in sufficient detail, within seven (7) days of the invoice date. Failure to comply with the requirements of this provision shall preclude the Client's right to dispute such invoice. All payments must reference the invoice number. Insight reserves the right to charge interest of 1.5% per month or the maximum allowable by Applicable Law, whichever is less, for any undisputed past due Fees. Client is responsible for all costs of collection, including reasonable attorneys' fees, for any payment default on undisputed Fees. Except as otherwise provided in this paragraph, Client shall not be entitled by reason of any set off, counterclaim, abatement, or other similar deduction to withhold payment of any amount due to Insight. 3.4 Taxes. Fees or prices exclude taxes of any kind and any travel expenses that may be incurred by Insight in connection with this Agreement. Federal, state and local sales, use and excise taxes and all similar taxes and duties on Cloud Services performed or any other services hereunder, (excluding taxes based on Insight s income, assets or net worth), are the sole responsibility of Client and will be separately itemized on the invoice. Client may provide Insight a tax exemption certificate, which will be subject to review and acceptance by Insight. 3.5 Cloud Service Credits. In the event that a Cloud Service credit is due in accordance with the Service Provider Terms, the Parties agree that any credit due will be credited by Insight to Client s account within a reasonable Page 4 of 14

5 time after Insight s receipt the corresponding credit amount from Service Provider following Service Provider s verification of Client's claim. Client expressly acknowledges and agrees that Insight is not obligated to provide any Cloud Service credit if Service Provider is unable to verify, or otherwise rejects, Client s claim for any reason or if Service Provider fails to provide the Cloud Service credit for any reason even if it has verified Client s claim. ANY CREDITS OR TERMINATION RIGHTS DESCRIBED UNDER THE SLA SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF CLIENT IN CONNECTION WITH ANY UNAVAILABILITY OF THE CLOUD SERVICES OR BREACH OF THE SLA. 4 TERM, SUSPENSION, TERMINATION 4.1 Term of Agreement. (a) Unless earlier terminated in accordance with this Section 4, the initial term of Client s subscription of the Cloud Services shall be as stated in Exhibit A Fee Schedule Table 1 of this Agreement, commencing on the later of (i) the Effective Date, or (ii) the date the Cloud Services are made available to Client by the Service Provider as notified by the Service Provider to Insight ( Initial Term ). (b) Upon expiration of the Initial Term, Client s subscription of the Cloud Services will automatically renew for additional, successive terms as stated in Exhibit A Fee Schedule Table 1 of this Agreement (each a Renewal Term ) unless Client or Insight provides notice of non-renewal (as provided in Section 4.1(c) (Non-Renewal Notification)) at least sixty (60) days prior to the end of the Initial Term or the Renewal Term then in effect. (c) Non-Renewal Notification. Notwithstanding anything to the contrary in this Agreement, any notices regarding a Party s non-renewal of the Cloud Services as provided in this subsection ( Non-Renewal Notice ) may be submitted as follows: (i) if by Client to Insight, such Non-Renewal Notice shall be addressed to [email protected]; or (ii) if by Insight to Client, such Non-Renewal Notice shall be addressed to Client s address on file with Insight. Such Non-Renewal Notice shall be deemed effective upon the receiving Party s actual receipt of the transmission of such Non-Renewal Notice as evidenced by the computer records or any archival copy thereof kept in the receiving Party s ordinary course of business. With respect to any Non- Renewal Notice sent by in accordance with this paragraph, if the receiving party actually receives such Non-Renewal Notice via before 5:00 p.m. Mountain Standard Time on the receiving party s business day, it shall be deemed effective that date; otherwise it will deemed effective the next business day. Notwithstanding anything to the contrary in this Agreement, if such Non-Renewal Notice cannot be received because the receiving Party has moved or failed to notify the sender of its change of address or other relevant information, the receiving Party is no longer operating its business, the receiving Party refuses delivery, or the receiving Party s or other messaging systems or any other information-technology-related systems or infrastructure do not, for whatever reason and in whatever manner, allow such Non-Renewal Notice to be received, then such Non-Renewal Notice shall be deemed received when sent and deemed effective when sent. 4.2 Insight/Service Provider Suspension/Termination Rights. (a) Misuse. The provision of the Cloud Services may be withheld or the Cloud Services may be suspended or terminated, in whole or in part, by Service Provider, (i) should Client use the Cloud Services in violation of (A) the terms and conditions of this Agreement, including without limitation, the Service Provider Terms or (B) the Other Cloud Service-Related Terms, if applicable or (ii) under any circumstances described in the Service Provider Terms. Any such action by Service Provider does not give Client the right to terminate this Agreement. (b) Client s Breach. Without prejudice to any other rights to which it may be entitled, Insight may terminate this Agreement, in whole or in part, with immediate effect, if Client materially breaches this Agreement and Client fails to remedy that breach within 30 days after receipt of Insight s written notice of such breach, such notice to refer to Insight s intent to terminate this Agreement unless the breach is remedied. A material breach of this Agreement, includes, without limitation, Client s failure to pay the Fees when due, if Insight s charge of any Fees using a credit card provided by Client is rejected for any reason, or Client s breach of the Section 5.5 (Compliance With Laws). In addition, If Service Provider terminates any part or all of the Cloud Services in connection with any Use Issues as defined in this paragraph, Client shall be deemed to have been in material breach of this Agreement. Notwithstanding anything to the contrary in this paragraph, Insight is not required to provide Client the aforementioned prior written notice and 30-day cure period, and Insight may terminate this Agreement, in whole or in part, upon written notice with immediate effect unless indicated otherwise in such notice, if the Service Provider does not provide a corresponding adequate notice and cure period to Insight in connection with Service Provider s termination of the Cloud Services (A) relating to any of the events, issues, situations, or circumstances described in the subsection paragraph titled Misuse, (B) due to Client s use of the Cloud Services in violation of (1) the terms and conditions of this Agreement, or (2) the Other Cloud Service- Related Terms, if applicable, (C) under any circumstances described in the Service Provider Terms, or (D) due to any other act or omission of Client (collectively, Use Issues ). If Service Provider terminates any part or all of the Cloud Services in connection with any Use Issues, Client shall be deemed to have been in material breach of this Agreement, and notwithstanding anything to the contrary in this paragraph, Insight may terminate this Agreement, in whole or in part, upon written notice with immediate effect unless indicated otherwise in such Page 5 of 14

6 notice. In addition, Insight may terminate this Agreement effective upon notice, if Client: (i) becomes insolvent; (ii) enters bankruptcy, reorganization, or other similar proceedings under Applicable Law, whether voluntary or involuntary; (iii) admits in writing its inability to pay debts; or (iv) makes or attempts to make an assignment for the benefit of creditors. 4.3 Suspension Duration Fee Accrual; Remedial Work. For the duration of any withholding or suspension of the Cloud Services, or any part thereof, under this Section, the Fees will continue to accrue and will be based upon the Usage Commitment. Client shall be responsible to pay for such Fees in accordance with this Agreement. If Service Provider charges Insight for any remedial work that becomes necessary as a direct result of any Use Issues, Insight shall charge Client, and Client will pay Insight, such charges within 30 days of Insight s invoice date. In addition, any Cloud Services disconnection or suspension pursuant to this Section may result in the requirement of a reasonable reinstatement fee. Furthermore, if Service Provider suspends any Cloud Services due to Client s acts or omissions and requires an increase in the fees payable by Insight to Services Provider as a prerequisite for Service Provider to resume making the Cloud Services available for Client, Client agrees to pay additional fees in accordance with this Agreement if invoiced by Insight. 4.4 ISPA Termination. This Agreement will automatically terminate, without any liability for such termination, upon written notice to Client with immediate effect if the ISPA terminates for any reason or the ISPA otherwise expires. In addition, if this Agreement is entered into by Insight and Client before Service Provider agrees with Insight under the ISPA to provide the applicable Cloud Services to Client, and if Service Provider then refuses to provision such Cloud Services for any reason, Insight may immediately terminate this Agreement, without any liability for such termination, upon written notice to Client. 4.5 Client Termination Rights. (a) Insight s Breach. This Agreement may not be terminated or suspended by Client for convenience. Client has the right to terminate this Agreement only if Insight materially breaches this Agreement and fails to remedy that breach within 30 days after receipt of Client s written notice of such breach, such notice to refer to Client s intent to terminate this Agreement unless the breach is remedied. For clarification purposes, Insight shall not be liable to Client if Service Provider withholds the provision of the Cloud Services or suspends or terminates Client s access to, or use of, the Cloud Services, or any part thereof, as provided in this Section. Any such action by Service Provider does not give Client the right to terminate this Agreement. Client may terminate this Agreement effective upon notice, if Insight: (i) becomes insolvent; (ii) enters bankruptcy, reorganization, or other similar proceedings under Applicable Law, whether voluntary or involuntary; (iii) admits in writing its inability to pay debts; or (iv) makes or attempts to make an assignment for the benefit of creditors. (b) Client Termination under SPT. Client may have certain rights to terminate some Cloud Services (but not the entire Agreement) only as expressly provided under the Service Provider Terms; provided, however, that Client must first be in compliance with all applicable termination-related processes and other requirements set forth in the Service Provider Terms, and Client must provide Insight prior written notice of Client s election to exercise such termination rights, and any such election, if made by Client, shall be exercised in accordance with the applicable Service Provider Terms Effect of Termination. (a) If all or part of this Agreement is terminated by Insight as provided in the subsection paragraph titled Client s Breach, Client shall pay Insight the Fees that would be due for the remainder of the unexpired Term. (b) If this Agreement is terminated as provided in the subsection paragraph titled ISPA Termination for reasons other than in connection with any Use Issues, Client shall pay Insight the Fees for all Cloud Services provided to Client until the Service Provider s actual termination of the Cloud Services to Client. (c) If this Agreement or certain Cloud Services are terminated by Client under the subsection titled Client s Termination Rights, Client shall pay Insight the Fees for all Cloud Services provided to Client until the effective date of Client s termination of this Agreement or Client s termination of such Cloud Services, as applicable, as notified in writing by Client to Insight. For clarification purposes, if only certain Cloud Services are terminated by Client under the subsection titled Client s Termination Rights, Client shall continue to pay in accordance with this Agreement for any Cloud Services that have not been terminated. (d) Provision of Cloud Services after Client s Termination. Notwithstanding anything to the contrary in this Section, if despite Client s termination election under this Section, (i) Client requests Insight for the continued delivery of the applicable Cloud Services or part thereof after the intended effective date of Client s termination of such Cloud Services or such part thereof as notified by Client in its written termination notice, or (ii) Client otherwise continues to have access to and continues to use such Cloud Services or such part thereof after such date, then, even if such request or such access and use is temporary, to the extent Service Provider invoices Insight for the provision to Client of such Cloud Services or such part thereof after such date, Client shall pay Insight the Fees for such Services or such part thereof until the Service Provider s actual termination of such Cloud Services or such part thereof. The terms of this Agreement shall govern the provision of any Cloud Services or any part thereof to Client as described in this paragraph until terminated by Service Provider. (e) Fees to be Paid Upon Termination. The Fees to be paid by Client to Insight as provided in the subsection titled Effect of Termination shall be based upon the Usage Commitment. Notwithstanding anything to the Page 6 of 14

7 contrary in this Agreement, all of the Fees to be paid by Client to Insight as provided in this Section shall become immediately due and payable. Suspension of the Cloud Services or termination of this Agreement shall be without prejudice to any rights of either Party arising on or before such suspension or termination. 5. ADDITIONAL TERMS AND CONDITIONS: 5.1 Authority; Exhibits. Each Party represents and warrants that it possesses the full power and authority to enter into this Agreement and that it has taken all actions required by its procedures, by-laws, or Applicable Law to exercise that authority, and to lawfully authorize its personnel to execute this Agreement and to bind it to this Agreement. Exhibits A and B are incorporated into and made a part of this Agreement. 5.2 Information Accuracy. (a) By purchasing the Cloud Services or otherwise applying for credit in connection with such purchase, Client expressly acknowledges that Client will establish an account with Insight and obtain a login or user name, account number, password, and/or other access-related information (collectively, Account-Access Information ). Client agrees to promptly: (1) provide certain true, current, complete and accurate information about Client as required by Insight and by the Service Provider to provision the Cloud Services or provide technical support; and (2) maintain and update such information to keep it current, complete, and accurate. For instance, and without limiting the effect of the foregoing, Client must promptly notify Insight of any changes to Client s billing address, , or the names of its authorized personnel. Client authorizes Insight to process any and all account transactions initiated through the use of Client s Account-Access Information. In addition, Client shall provide any financial information reasonably requested by Insight from time to time for the purpose of establishing or continuing Client s credit limit if Insight has approved Client to obtain credit terms. Insight retains the right to decline or extend credit and to require that all applicable Fees for the applicable Term be paid prior to provisioning of the Cloud Services or at the commencement of the then-current Term based upon changes in Insight s credit policies or Client s financial condition and/or payment record. (b) Client agrees to be responsible for all activities, changes, and obligations incurred through Client s account, whether or not authorized by Client, and for maintaining the confidentiality of Client s Account-Access Information. Insight may assume without inquiry that any person in possession of Client s Account-Access Information has authority to access Client s account or the Cloud Services or modify Client s account, including, without limitation, purchasing additional or different Cloud Services or increasing the Registered Usage pertaining to Client s purchase under this Agreement. Client must immediately notify Insight in writing of any unauthorized use of Client s Account-Access Information, and Client agrees to be responsible for any unauthorized activities, charges and/or liabilities made through Client s Account-Access Information. 5.3 Client Indemnification. Client shall defend and indemnify Insight for, from, and against any losses, damages, penalties, costs, and expenses, including, without limitation, reasonable attorney fees incurred by Insight in connection with any claims or actions by Service Provider or other third parties arising out of or resulting from (i) information passing through the Cloud Services and/or Service Provider s network to or from the Client, (ii) Client s use of the Cloud Services, including, without limitation, use in High-Risk Applications (excluding claims that the Cloud Services, as provided by Service Provider, infringe third party intellectual property rights), (iii) the failure to comply with Applicable Law, and/or (iv) the failure to comply with this Agreement. 5.4 Client acknowledges that it is its responsibility to be aware and to cause its employees to be aware of any responsibilities Client and its employees have in respect of data protection and privacy laws and/or regulations. Client shall not use, or require Insight or Service Provider to use, any data obtained via the Cloud Services for any unlawful purposes. 5.5 Compliance with Laws. Client shall comply with, and agrees that it is its responsibility to adhere to, all Applicable Law in connection with Client s use of the Cloud Services. The Cloud Services may be subject to U.S. Export Laws. Client shall comply with, and agrees that it is its responsibility to adhere to, the U.S. Export Laws and any territorial restrictions under this Agreement or any such restrictions imposed by Service Provider. Without limiting the generality of the foregoing, Client shall not export or re-export, or allow the export or reexport of, the Cloud Services in violation of any U.S. Export Laws. In addition, Client expressly acknowledges and agrees that one or more of the Service Provider Facilities may be located outside the U.S. and that the use of the Cloud Services, including, without limitation, the transfer, transmission, distribution, posting, uploading, storage, downloading, and the retrieval of any information, software, technology, or other technical data via the Cloud Services may be subject to U.S. or foreign export, import, privacy, or data security laws. Client shall not transfer, transmit, distribute, upload, store, or post via, or download or retrieve from, the Cloud Services any information, software, technology, or other technical data in violation of Applicable Law. 5.6 High-Risk Use; No Guarantee of Security, Privacy, Access. Client assumes all risks, costs, and expenses in connection with the use of the Cloud Services. Use of Cloud Services are governed solely by Service Provider s terms and conditions regarding use of such services. 5.7 Pass-Through SLA; Warranty Disclaimer. For the Cloud Services ordered under this Agreement, Insight shall pass through the applicable SLA to Client. INSIGHT, HOWEVER, PROVIDES NO WARRANTY IN CONNECTION WITH THE CLOUD SERVICES, ANY TECHNICAL SUPPORT PROVIDED BY INSIGHT OR SERVICE PROVIDER IN CONNECTION WITH THE CLOUD SERVICES, OR ANY SERVICE PROVIDER FACILITIES. THE CLOUD SERVICES AND ANY TECHNICAL SUPPORT PROVIDED BY INSIGHT OR Page 7 of 14

8 SERVICE PROVIDER ARE SOLD OR OTHERWISE PROVIDED BY INSIGHT TO CLIENT "AS IS," AS AVAILABLE, AND WITH ALL FAULTS, WITHOUT WARRANTY OF ANY KIND BY INSIGHT, EITHER EXPRESS, IMPLIED, OR STATUTORY. INSIGHT EXPRESSLY DISCLAIMS ALL WARRANTIES IN RELATION TO THE CLOUD SERVICES, ANY TECHNICAL SUPPORT PROVIDED BY INSIGHT OR SERVICE PROVIDER IN CONNECTION WITH THE CLOUD SERVICES, OR ANY SERVICE PROVIDER FACILITIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE, OR ANY IMPLIED WARRANTY ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, INSIGHT DISCLAIMS ANY WARRANTY THAT (I) THE CLOUD SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE; (II) ANY DEFECTS WILL BE CORRECTED; (III) THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS; (IV) THE CLOUD SERVICES OR ANY TECHNICAL SUPPORT PROVIDED BY INSIGHT OR SERVICE PROVIDER IN CONNECTION WITH THE CLOUD SERVICES WILL MEET CLIENT S REQUIREMENTS OR EXPECTATIONS; (V) ANY RESULTS OBTAINED FROM THE USE OF THE CLOUD SERVICES WILL BE ACCURATE OR RELIABLE; AND (VI) ANY SERVICE PROVIDER FACILITIES WILL BE DEDICATED TO PROVIDING THE CLOUD SERVICES SOLELY FOR CLIENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CLIENT FROM INSIGHT (INCLUDING, WITHOUT LIMITATION, ITS SALES OR TECHNICAL-SUPPORT REPRESENTATIVES), FROM SERVICE PROVIDER, OR THROUGH OR FROM THE INSIGHT S OR THE SERVICE PROVIDER S WEBSITES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. CLIENT SHOULD NOT RELY ON ANY SUCH ADVICE OR INFORMATION. 5.8 Confidentiality. To the extent permitted by Applicable Law, any non-public information provided by a Party under this Agreement, including, without limitation, any pricing information, financial information, and proprietary information ( Confidential Information ), are confidential to the disclosing Party ( Discloser ). The Party receiving the Confidential Information under this Agreement ( Recipient ) will protect the Confidential Information from any disclosure, and will not use it, except as permitted herein. Client expressly agrees and acknowledges that any Service Provider information disclosed to Client in connection with the Cloud Services or any technical support in connection with the Cloud Services either by Service Provider or Insight, including, without limitation, Service Provider s intellectual property and any access codes provided by Service Provider in connection with the Cloud Services, shall be deemed Insight s Confidential Information, as between Insight and Client, for the purposes of this subsection. Recipient must use the same degree of care in protecting and preserving Confidential Information as it uses to protect its own similar confidential and proprietary information, but shall never use less than what would be a reasonable standard of care within the U.S. regardless of where such Confidential Information may be obtained, used or stored. This Section applies to all Confidential Information disclosed by a Party except information that: (i) is or becomes generally known or in the public domain through no act or omission of the other Party (but at all times prior to becoming generally known in the public domain, such disclosed information shall be considered Confidential Information); (b) was lawfully in the Recipient s possession without restriction as to use or disclosure before its receipt from the Discloser; (c) is received from, or was made available to, a third party by the Discloser without any obligation of confidentiality; (d) was independently developed by the other Party; (e) is otherwise permitted to be disclosed under this Agreement; or (f) is disclosed with the prior written consent of the other Party. Recipient may provide Confidential Information only to Recipient s affiliates, employees, agents, or representatives who have a bona fide need to know such Confidential Information and who have agreed to provisions substantially similar to those in this paragraph. In addition, with respect to Client s Confidential Information received by Insight under this Agreement, Insight may disclose Client s Confidential information to Service Provider as reasonably necessary for, or requested by, Service Provider to provide the Cloud Services or any technical support related to the Cloud Services; provided, however, that the Service Provider is subject to an agreement containing restrictions on disclosure substantially similar to those in this paragraph. If Client is a federal or state governmental entity, then Client agrees on behalf of the other agencies of the federal government or of such state who may benefit for the Cloud Services, that such agencies shall be subject to the same obligations of confidentiality as set forth in this Agreement. Each Party recognizes and agrees that nothing contained in the Agreement will be construed as granting any rights to Recipient, by license or otherwise, to any of the Confidential Information disclosed by Discloser except as specified in the Agreement. If Recipient is required to provide Confidential Information to any court, government agency or party pursuant to a written court order, subpoena, regulation or process of law, Recipient must first promptly notify Discloser. The notice must be in writing and identify the terms and circumstances surrounding such required disclosure so that Discloser may have a reasonable opportunity to seek a protective order or other appropriate remedy from the proper authority. At Discloser s expense, Recipient agrees to provide reasonable assistance to Discloser in seeking such order or other remedy. To the fullest extent permitted by law, Recipient will continue to protect as confidential and proprietary all Confidential Information disclosed in response to a written court order, subpoena, regulation or other process of law. Each Party expressly acknowledges that (a) all Confidential Information disclosed by Discloser is owned solely by the Discloser (or its vendors, service providers, contractors, or licensors (collectively, Vendors )), (b) such Confidential Information is unique and valuable to the Discloser or its Vendors, and (c) the unauthorized disclosure or use of such Confidential Information may cause irreparable harm and significant injury to the Discloser or its Vendors, for which monetary damages alone would not be an adequate remedy. Accordingly, each Party agrees that in the event of a breach or threatened breach of any provisions within this paragraph, the Discloser is entitled to seek specific performance and injunctive or other equitable relief as a remedy for such breach or anticipated breach. Any Page 8 of 14

9 such relief is in addition to, and not in lieu of any other remedies available to the Discloser, including, without limitation, monetary damages. 5.9 Limitation of Liability. (a) Liability Limitation. SUBJECT TO THE SUBSECTION PARAGRAPH TITLED EXCLUSION OF CERTAIN DAMAGES, INSIGHT S AGGREGATE MAXIMUM LIABILITY TO CLIENT FOR DAMAGES IN RELATION TO THIS AGREEMENT OR OTHERWISE ARISING FROM THE SUPPLY OF THE CLOUD SERVICES OR FROM THE FIRST LINE SUPPORT (WHETHER SUCH LIABILITY ARISES DUE TO NEGLIGENCE, TORT, BREACH OF CONTRACT, BREACH OF STATUTORY DUTY, MISREPRESENTATION, OR FOR ANY OTHER REASON) SHALL BE LIMITED TO THE ACTUAL AMOUNT PAID BY THE CLIENT TO INSIGHT FOR THE CLOUD SERVICE PROVIDED TO CLIENT DURING THE THREE-MONTH PERIOD (WITHIN THE APPLICABLE TERM) THAT IMMEDIATELY PRECEEDS THE EVENT CAUSING SUCH LIABILITY; PROVIDED, HOWEVER, THAT IF THE EVENT CAUSING SUCH LIABILITY OCCURS DURING THE FIRST THREE MONTHS OF THE APPLICABLE TERM, THEN INSIGHT S AGGREGATE MAXIMUM LIABILITY TO CLIENT FOR DAMAGES SHALL BE LIMITED TO THE ACTUAL AMOUNT PAID BY THE CLIENT TO INSIGHT FOR THE CLOUD SERVICE PROVIDED TO CLIENT FROM THE COMMENCEMENT OF THE APPLICABLE TERM THROUGH THE DATE THE EVENT CAUSING SUCH LIABILITY OCCURRED. SUCH LIMIT SHALL APPLY TO EACH EVENT OR SERIES OF CONNECTED EVENTS. UNDER NO CIRCUMSTANCES WILL INSIGHT S AGGREGATE MAXIMUM LIABILITY TO CLIENT FOR DAMAGES IN CONNECTION WITH ALL LIABILITY- CAUSING EVENTS IN RELATION TO THIS AGREEMENT OR OTHERWISE ARISING FROM THE SUPPLY OF THE CLOUD SERVICES OR FROM THE FIRST LINE SUPPORT EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO INSIGHT FOR THE CLOUD SERVICES FOR THE TWELVE-MONTH PERIOD (WITHIN THE APPLICABLE TERM) PRECEDING THE LIABILITY-CAUSING EVENT(S) OCCURED, ANSUCH LIMITATION IS CUMULATIVE AND NOT PER EVENT OR INCIDENT. (b) Exclusion of Certain Damages. IN ANY EVENT, EXCEPT FOR FRAUD AND EXCEPT FOR CLIENT S OBLIGATIONS UNDER THE SUBSECTION PARAGRAPH TITLED CLIENT INDEMNIFICATION, NEITHER PARTY ACCEPTS ANY LIABILITY UNDER OR IN RELATION TO THIS AGREEMENT OR ITS SUBJECT MATTER (WHETHER SUCH LIABILITY ARISES DUE TO NEGLIGENCE, TORT, BREACH OF CONTRACT, BREACH OF STATUTORY DUTY, MISREPRESENTATION, OR FOR ANY OTHER REASON) FOR ANY AND ALL OF THE FOLLOWING: INTERRUPTION OF BUSINESS ACTIVITIES; LOSS OR LOSS OF USE OF, CORRUPTION OR DESTRUCTION, OF DATA; LOSS OF BUSINESS OR ANTICIPATED SAVINGS; LOSS OF SALES OR TURNOVER; LOSS OF OR DAMAGE TO REPUTATION; LOSS OF CONTRACTS; LOSS OF CUSTOMERS; LOSS OF, OR LOSS OF USE OF, ANY SOFTWARE; WEB TRAFFIC, S, COMPUTER, OTHER EQUIPMENT, OR PLANT; WASTED MANAGEMENT OR OTHER STAFF TIME; LOSSES OR LIABILITIES UNDER OR IN RELATION TO ANY OTHER CONTRACT; LOSS(ES) DIRECTLY OR INDIRECTLY DUE TO NETWORK ACCESS BY THIRD PARTIES; OR ANY INDIRECT, INCIDENTAL, SPECIAL, MULTIPLE, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOSS PROFITS, WHETHER UNDER THIS AGREEMENT OR OTHERWISE, REGARDLESS OF THE FORM OF ACTION OR THEORY OF RELIEF, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. FOR THE PURPOSES OF THIS PARAGRAPH, THE TERM LOSS INCLUDES A PARTIAL LOSS OR REDUCTION IN VALUE AS WELL AS A COMPLETE OR TOTAL LOSS. (c) BOTH PARTIES UNDERSTAND AND AGREE THAT THE LIMITATIONS OF LIABILITIES SET FORTH IN THIS AGREEMENT FOR EITHER PARTY ARE REASONABLE AND THAT THEY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT SUCH LIMITATIONS. (c) CLIENT AGREES THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR OF THE CLOUD SERVICES MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR SUCH CLAIM WILL BE FOREVER BARRED Force Majeure. Except for the obligation to make timely payments, the obligations of each Party under this Agreement shall be suspended during the period and to the extent that such Party or Service Provider is prevented or hindered from complying with them by any cause beyond its reasonable control including, without limitation, events such as, but not limited to: strikes; lock-outs; labor disputes; acts of God; war; riot; civil commotion; malicious damage; compliance with any Applicable Law; accident; loss of electrical power; loss of telephone/internet/wide area network and similar infrastructure; fire; flood; storm; or unavailability of goods or raw materials. If either Party or Service Provider is so hindered or prevented, the Party concerned shall give notice of suspension as soon as reasonably possible to the other Party stating the date and extent of the suspension. Any Party whose obligations have been suspended as aforesaid shall resume the performance of those obligations as soon as reasonably possible after the removal of the cause and shall so notify the other Party. For the avoidance of doubt, if Service Provider has been so hindered or prevented by any cause beyond its reasonable control including, without limitation, the events described in this paragraph, then Insight shall not be liable for Service Provider s delay or failure in providing the Cloud Services to Client Non-Solicitation & Non-Hire. Both Parties agree that, during the entire Term and for a one-year period after the termination or expiration of this Agreement, neither Party will directly or indirectly solicit, offer employment or Page 9 of 14

10 hire any current or former employee or consultant of the other Party who was directly involved in the performance of this Agreement. This provision does not restrict the right of either Party to solicit or recruit generally in the media and does not prohibit either Party from hiring an employee of the other who answers any advertisement or who otherwise voluntarily applies for hire without having been initially personally solicited or recruited by the hiring Party Notices. (a) General. Except as expressly provided otherwise in this Agreement, all notices, demands, requests, consents, and communications regarding this Agreement (collectively, Notices ) by either Party to the other, including, without limitation, any Notices regarding payment or other disputes, breach, or termination shall be in writing and in the English language and shall be given in any manner set forth as follows to the mailing addresses provided in or pursuant to this Agreement, and except as expressly provided otherwise in this Agreement, such Notices will be deemed effective as indicated as follows: (i) if delivered in person, on the date it is delivered; (ii) if sent by nationally recognized overnight courier, one (1) business days after the sender provides it to the courier for dispatch; (iii) if sent by certified, postage prepaid, return receipt requested, five (5) business days from the date such Notice was posted through the U.S. Postal Services (or other applicable postal delivery service); (iv) if sent by facsimile transmission, upon confirmation of receipt as indicated by the transmission report generated by sender s facsimile machine (or the receiving party s next business day if transmitted after 5:00 p.m. Mountain Standard Time or during a weekend or a holiday observed by the receiving party); provided, however, that the same Notice is sent to the other Party by certified mail or by nationally recognized overnight courier within three (3) business days of the date of that facsimile. Except as expressly provided otherwise herein, (x) Notices to Insight shall be addressed to Insight, 6820 South Harl Avenue, Tempe, Arizona 85283, Attention: Cloud Practice Manager, with a separate copy addressed to the attention of Insight s Legal Department at that same address, and (y) Notices to Client shall be addressed to the mailing address on file with Insight or as shown on public records. (b) Routine. Communications by either Party to the other in the normal course of provisioning the Cloud Services or routine operational communications, including, without limitation, any communication relating to any changes to the Cloud Services pricing rate made by Insight, technical support issues, or Insight s notice of Client s usage of the Cloud Services as determined by Service Provider (collectively, Operations-Related Communication ) shall be deemed properly given when (i) provided under any of the methods described in paragraph (a) of this subsection, or (ii) sent by if properly addressed to the receiving Party at the addresses described in this paragraph and sent via the Internet as evidenced by the computer records or any archival copy thereof kept in the ordinary course of business by the sender, whichever method is first used by the sender for a particular Operations-Related Communication. Any Operations-Related Communication provided by shall be submitted to the Party s respective addresses as follows: (i) if by Client to Insight, such Operations- Related Communication shall be addressed to [email protected]; or (ii) if by Insight to Client, such Operations- Related Communication shall be addressed to Client s address on file with Insight. Regarding any Operations-Related Communication, if sender sends it before 5:00 p.m. Mountain Standard Time on the receiving party s business day, it shall be deemed effective on the date sent by sender; otherwise it will deemed effective on the receiving party s next business day. In addition, Insight may provide notice of certain matters in connection with the Cloud Services by displaying such notice or links to such notice to Client, or to Insight s clients in general, on Insight s website, which notice shall be deemed effective upon the date such notice is first displayed. (c) Address Change. Insight may change its or postal mail address for the purposes of receiving any Notices or other communications related to this Agreement at any time by sending written notice to Client using any of the methods described in this subsection, including, without limitation, . Notwithstanding anything to the contrary in this Agreement, Client may change its or postal mail address for the purposes of receiving any Notices or other communications related to this Agreement at any time by making such changes on its account through Insight s website, which notice shall be effective upon the Insight s acceptance of such changes as evidenced by Insight s computer records kept in the ordinary course of business. Insight assumes no liability or responsibility for Client s failure to receive any Notice if such failure results from an inaccurate or out-of-date e- mail or postal mail address or any other contact information of Client Miscellaneous. Except as specifically provided herein, this Agreement is not intended to and does not create any claims, rights, remedies, or benefits exercisable by any third party. The prevailing Party in any proceedings instituted by either Party regarding a dispute concerning this Agreement shall be entitled to recover its reasonable attorney's fees, costs, and expenses. Termination or expiration of this Agreement shall not relieve either Party of any obligation under this Agreement, which expressly or by implication survives termination of this Agreement, including, without limitation, its obligations under this Section. If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any law or public policy, all other terms or provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal, or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible. Sections headings in this Agreement Page 10 of 14

11 are for convenience of reference only, and do not define, limit, or fully describe the scope or intent of the provisions of this Agreement. Client shall have no right to assign this Agreement, nor any of its rights, obligations, or privileges (by operation of law or otherwise) hereunder without the prior written consent of Insight, which Insight may withhold in its absolute discretion. Insight may, without having to obtain Client s consent, assign this Agreement, and its rights, obligations, and privileges hereunder to any affiliate or to any successor by merger, or any purchaser of substantially all of the assets or stock of Insight, without the consent of Client. Any attempted assignment, delegation or assumption not in accordance with this Section shall be null and void and of no force or effect whatsoever. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and permitted assigns of the Parties. This Agreement may not be modified or amended, including by custom, usage of trade, or course of dealing, except as expressly provided in this Agreement or except by an instrument in writing signed by a duly authorized representative of each Party, which instrument specifically refers to and amends this Agreement Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Arizona without reference to its conflict of law rules. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Each Party irrevocably submits to the exclusive jurisdiction of the federal and state courts located in Phoenix, Arizona for the purposes of any action or proceeding arising out of or relating to this Agreement. Each Party consents to such jurisdiction and agrees that venue shall lie in the state or federals courts in Phoenix, Arizona with respect to any claim or cause of action arising under or relating to this Agreement. Notwithstanding the foregoing, in the event of a conflict between this Agreement and Other Service-Related Terms regarding this provision, the Other Service-Related Terms shall govern use of the Cloud Services by Client Entire Agreement. This Agreement, including, without limitation, the Exhibits attached hereto, constitutes and contains the entire agreement between the Parties with respect to the subject matter and supersedes any prior oral or written agreements relating to the Cloud Services or any other services hereunder. All prior agreements, representations, warranties, statements, negotiations, understandings, and undertakings, any master or framework agreements, and any confidentiality or non-disclosure agreements between Client and Insight entered into either before or after the Effective Date shall not apply to any Cloud Services purchased by Client or any renewal of such Cloud Services, and Customer hereby represents and expressly acknowledges that in entering into this Agreement it did not rely on any representations or warranties other than those explicitly set forth in this Agreement. Page 11 of 14

12 Exhibit A Services Description and Pricing Schedule Definitions and Fee Schedule: Service Provider s Services in this Exhibit A includes Cloud Services, the provision of cloud collaboration and content management service functions delivered and/or made available by Service Provider for use by Clients over the Internet and Box Services, as described in this Exhibit and the Box Service Agreement ( BSA ) at the following URL Client will be bound by and comply with the BSA. Services: Service Provider s Services provide secure, scalable Content sharing. Service Provider s dynamic, flexible content management solution empowers Clients and End Users to share and access Content from anywhere, while providing IT with enterprise-grade security and oversight into how content moves throughout their organization. Content on Service Provider s Services can also be accessed through mobile applications, and extended to certain partner applications. The Service Provider s Services are categorized as follows: For Business (for business End Users and team/department-level use): Service Provider s secure, scalable content sharing helps users get work done fast. Service Provider allows for End Users to collaborate with anyone, on any device, from anywhere. Service Provider allows End Users to replace FTP and other on-premise file servers, securely share content with internal and external partners, facilitate project collaboration, and to give field teams access to content on mobile devices. For Enterprise (for IT and C-level executives and company-wide deployment): Service Provider s secure, scalable content sharing provides enterprises with an intuitive, easy-to-manage solution that s able to be adopted with little maintenance, transforming IT into a center of innovation. Service Provider provides for enterprises to be able to consolidate disconnected content from extranets, intranets, mobile devices, social platforms and ECM systems onto a secure, cloud platform. Through Service Provider s open APIs, organizations can integrate the content they manage on Service Provider into other software they utilize, enabling them to take on a store once, extend anywhere strategy to their content. Ultimately, Service Provider makes it possible for enterprises to securely collaborate and share beyond the firewall, helping accelerate projects and timeto-market. Cloud Service Fee Schedule: Fees will be set forth in the Cloud Service Order Form (a form of which is set forth on the next page as Table 1), which may be issued by Insight from time to time. Fees exclude tax. Fees quoted to Client in the Cloud Service Order Form are only valid for 30 days from the date of Insight s quote. Fees are subject to change based on any changes imposed by Service Provider in connection with a change to Service Provider s fees or Cloud Service program. Page 12 of 14

13 Table 1 Cloud Service Order Form The Fees provided below are only valid for 30 days from the date of Insight s quote. Fees are subject to change based on any changes imposed by Service Provider in connection with a change to Service Provider s fees or Cloud Service program. Recurring Fees Non- Recurring Fees SKU Service Description Recurring Fee Qty Total Recurring Fee One- Time Fee Qty Total One- Time Fee *Fees shown above are on an annual basis. Total Recurring Fees: $0.00 Total Non- Recurring Fees: $0.00 INITIAL SUBSCRIPTION PERIOD Intial Subscription Period (Months): Invoice Frequency: Total Non- Recurring Fees: Total Recurring Fees: Total Estimated First Invoice Amount: Total Estimated Recuring Invoice Amount: RENEWAL SUBSCRIPTION PERIOD Renewal Contract Term (Months): Frequency of Recurring Fees: Total Recurring Renewal Fees: Total First Invoice Renewal Amount: Total Recuring Renenwal Invoice Amount: 12 Annually $0.00 $0.00 $0.00 $ Monthly $0.00 $0.00 $0.00 Page 13 of 14

14 1. Definitions Exhibit B CHANGE REQUEST FORM Client Type Cloud Computing Services Ordered from Insight Insight Manager Request Date Purchase Order (if applicable) to Apply to Changes: PO # Services purchased by Client from Insight before completing this form Reason for Change Change Request Summary Description of Change Proposal to modify current order Pricing (insert new pricing information, if applicable) Other Matters/Comments Impact of Change Signatures Insight VP/ Director: Date Approved Rejected Print Name: Title: Client: Date Approved Rejected Print Name: Title: Page 14 of 14