APERIO SERVICES AGREEMENT

DEFINITIONS

Administrators are Customer assigned personnel designated to administer APERIO Services.

APERIO Services means access to the Software products and services, identified on the Order, provided to Customer pursuant to this agreement. APERIO Services include SaaS products and on-premise products.

APERIO Technology is all technology provided in connection with the APERIO Services, including the user experience, look and feel, algorithms, processes and procedures, and underlying technology used to deliver the APERIO Services and derivative works of the foregoing. APERIO Technology my incorporate Feedback.

Authorized Users are uniquely identified Customer employees authorized to use APERIO Services as identified in the Order.

Business Representatives are the Customer assigned personnel designated to receive notices relating to this agreement or Order.

Customer Data means the data which is generated or collected by Customer and maintained on Customers own systems or accessed by APERIO Services and processed by APERIO Services. Customer Data includes Derived Data.

Derived Data are data derived from Customer Data through the use of and processing by APERIO Services by Customer in the course of its business. Derived data includes, but is not limited to, data which the Customer has cleansed or aggregated using the APERIO Services and virtual signals, alerts, notifications, reports, summaries and displays generated by the APERIO Services (but does not include formats or other components of displays or reports provided as part of the APERIO Services).

Documentation are APERIO Service manuals, training materials, specifications, on-line help, and other materials that describe the APERIO Services. Documentation is routinely modified.

Feedback are comments, bug reports, feature or improvement requests, questions, ideas, and other feedback from the Customer on the APERIO Services.

Intellectual Property means all forms of intellectual property under the statutory or common laws of any state, country or other jurisdiction, including but not limited to, patents, patent applications, patentable inventions, copyrights, copyrightable works, mask works, trademarks, service marks and trade secrets.

On-Premise Software is the components of the APERIO Services which are installed on Customer’s premises or on computer resources under the control of Customer. On-Premise software is used to connect to Customer systems and data sources as well as to provide sensitive APERIO Services.

Order means an APERIO supplied quote, proposal, or online order form identifying and providing other terms for APERIO Services to be provided to Customer. The Order generally will identify:

• The APERIO Services
• Sizing parameters and other restrictions that may include, but are not limited to, the number of sites, number of End Users, Compute Resources, or Storage
• Subscription fees
• Subscription term

In the absence of any of these terms on an Order, the APERIO Services will be provided on a month to month basis at the standard list price for such services.

SaaS Software is software installed by APERIO, on APERIO controlled computers and systems; the APERIO controlled computers and systems may be provided by cloud providers such as AWS and Azure.
Software are the APERIO On-Premise and SaaS Software.

Subscription Term is the permitted subscription period for APERIO Services as put forth in the applicable Order.

Support is the support and maintenance of the APERIO Services as provided in Section 1(b) below.

RECITALS

1. Services

1. Platform Access. During the Subscription Term, APERIO shall provide access to the APERIO Services defined in the Order.
2. Support. Software and services provided hereunder are provided on a software as a service basis and such services and software will be updated and maintained on a regular basis by APERIO. APERIO will be responsible for updating and maintaining all the Saas Software. Customer will designate one or more Administrators to coordinate maintenance activities including applying updates to On-Premise Software and managing Authorized Users access to APERIO Services.
3. Representations. All services shall be provided in a professional and workmanlike manner, in accordance with the laws of the United States of America, and in accordance with this Agreement. APERIO shall take commercially reasonable efforts to maintain Customer Data in its possession in a manner that meets customary industry standards for security.

2. Licenses

1. License Grant. Subject to the terms and conditions contained herein and in any Order, APERIO hereby grants to the Customer, and Customer hereby accepts, a non-exclusive, non-transferable right to use the APERIO Services in the form and on the platforms provided in the Territory and the Field as defined in the Order.
2. License Restrictions. Except as expressly set forth in this Agreement, Customer shall not, and shall ensure that each person with access to the Software or APERIO Services shall not: (a) sell, sublicense, transfer, publish, distribute or commercially exploit the Software or APERIO Services, (b) make the Software or APERIO Services available to the public or any unauthorized third party through any means or media,(c) copy or reproduce the Software in whole or in part or port or transfer SaaS Software to any platform, (d) reverse engineer, decompile, translate, disassemble, or otherwise modify the Software or APERIO Services, (e) violate any trademark, copyright, patent and other intellectual property notices, access or use instructions contained in or provided with the APERIO Services or Software, (f) remove or alter any notice, including any copyright, trademark or patent notice or any notice of authorship, (g) incorporate any software included in the APERIO Services or Software into any other product, or (h) utilize or modify the APERIO Services or Software to develop derivative intellectual property or products used for commercial purposes. Customer shall not permit and shall ensure that no person with access to the Software or APERIO Services shall permit, any of the above from occurring.
3. Customer Data. Customer owns all Customer Data including Derived Data. APERIO shall not receive any ownership interest in it. APERIO may use customer data to improve the APERIO Services.
4. Third Party Open-Source Software. APERIO incorporates third party open-source software in its services. All open-source software used in APERIO Services must comply with APERIO’s open-source software policy. A list of third-party open-source software is available upon written request.

3. Fees and Taxes.

1. Services Fees. Customer shall pay APERIO the amounts set forth on the Order. All invoiced amounts shall be paid by the due date and in the currency defined on the Invoice, or, if any amounts are disputed, notice of such dispute shall be provided within thirty (30) days. Failure to provide notice of a fee dispute shall constitute a waiver of such dispute. To the extent that Customer’s usage exceeds any restrictions on usage set forth in an Order, then, except as provided in any Order, Customer shall be responsible for paying additional fees based on APERIO’s then standard rates for such usage.
2. Taxes. All sales, use, ad valorem or other taxes, duties or levies shall be paid by Customer. Customer shall notify APERIO prior to withholding any amount from payments due from Customer and shall cooperate with customer in obtaining any legally available exemption from such withholding. For tax purposes, the parties agree that this is a services contract and that all services to be performed hereunder by APERIO shall be performed in the United States or Israel.

4. Term and Termination.

1. Term. This Agreement, and all licenses granted hereunder, shall be for Subscription Term defined in the Order.
2. Termination. Either party may terminate the Order for a material breach, provided (a) that prior to such termination, the party charged with such breach shall have not less than sixty (60) days notice and opportunity to cure such breach. The notice period shall run from when the non-breaching party has provided sufficient detail and information relating to the breach to permit a cure (if a cure is possible).
3. Customer Termination for Convenience. Customer may terminate any Order for any reason upon thirty (30) days prior notice to APERIO.
4. Effect of Termination. Upon termination of an Order, APERIO will refund all prepaid and unused fees for the Service. Upon termination of the Order, Customer shall, at APERIO’ option, return or destroy all materials provided by APERIO pertaining to the Order, including, without limitation, all Documentation, promotional materials, marketing literature, written information and reports that have been supplied by APERIO, and all copies thereof, and shall cease using the APERIO Services and Software. Upon termination of an Order, APERIO shall, at Customer’s option, return or destroy all Customer Data, including all copies thereof. Notwithstanding the foregoing, either party may retain a file copy or backup copies of any software or data of the other party which is on its servers, provided such file copy or backup copy shall remain subject to the Confidentiality provisions hereof so long as it is retained.

5. Security and Data Protection.

Each of APERIO and the Customer covenant they shall comply with all applicable laws relating to data protection and privacy as well as each party’s own data protection and privacy policies. APERIO from time to time establishes or amends data protection and privacy policies and procedures in an effort to maintain such policies and procedures in accordance with industry standards and practice. The current version of APERIO’s data protection and privacy policies are available upon request. Customer agrees that it will comply with all APERIO data protect and privacy policies relating to the use of the APERIO Services and Systems, and indemnifies APERIO with respect to any liabilities which may result or arise from any breach of this Section 5 by Customer.

6. Confidentiality

1. Definition. “Confidential Information” means: (i) any proprietary and non-public information or materials of a Party including, without limitation, Intellectual Property, the Software, the APERIO Services, information relating to product plans, software code and design, network systems and design, flow charts, algorithms, formulae, unpublished patent applications, business methodologies, forecasts, strategies and other technical, business, financial and customer information; (ii) any other information of a Party that is designated as “Confidential” at the time of disclosure; and (iii) the terms and conditions of this Agreement. Notwithstanding the foregoing, Confidential Information shall not include information that: (x) is or becomes generally known to the public or available to the public by publication, commercial use or otherwise through no fault of the receiving Party; (y) was in the receiving Party’s possession at the time of disclosure without violation of any confidentiality restriction and without any restriction on the receiving Party’s further use or disclosure; or (z) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information. Third party information and materials which a Party is obligated to maintain in confidence shall be treated as Confidential Information in the same manner and to the same degree as a Party’s own information and materials.
2. Obligations. Neither Party will use the other Party’s Confidential Information except as permitted in, or as necessary to perform, this Agreement, and neither Party will disclose such Confidential Information to any third party, except to those of its employees and subcontractors who are subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein. The foregoing obligations will not restrict either Party from disclosing the other Party’s Confidential Information: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, or as may be required by any law or regulation, provided that the Party required to make such a disclosure gives reasonable notice to the other Party to enable it to contest such order or requirement; and (ii) on a confidential basis to its legal or other advisors. The receiving Party must use a reasonable degree of care to prevent the inadvertent, accidental, unauthorized or mistaken disclosure or use by its employees or subcontractors of Confidential Information. Upon termination of this Agreement, the receiving Party shall, at the other Party’s option, return or destroy all of the other Party’s Confidential Information received by the receiving Party.
3. Injunctive Relief. In the event of a breach of this Section 3 the Parties agree that the non-breaching Party could suffer irreparable harm and the total amount of monetary damages for any injury to the non-breaching Party may be impossible to calculate. Accordingly, the Parties agree that the non-breaching Party shall be entitled to seek temporary, preliminary and/or permanent injunctive relief against the breaching Party, its officers, employees or subcontractors, in addition to such other rights and remedies to which it may be entitled to at law or in equity.
4. Rights in Data. All data which the Customer enters or imports into the Software (“Customer Data”) shall remain the sole and exclusive property of the Customer. Customer grants a perpetual, non-exclusive license to APERIO to Customer Data for all purposes reasonably necessary or useful in implementing, providing, updating, and improving the APERIO Services and Software, including the development and optimization of algorithms to be provided as part of the Services or incorporated into the Software.

7. Indemnification by APERIO. APERIO shall indemnify Customer harmless from and against losses which result from Customer’s authorized use of the Software or APERIO Services during the term of this Agreement, in the form delivered to Customer (without any modification or enhancement except as specifically authorized in writing by APERIO) and in accordance with the Documentation, infringing any valid U.S. or European Union patent, provided that Customer provides APERIO with prompt notice of any claim, offers APERIO the ability to control the defense and settlement of such claim (provided such settlement requires no payment by Customer other than one which is indemnified hereunder), and cooperates with APERIO in such defense.

8. Intellectual Property

1. APERIO Intellectual Property. APERIO shall have all right, title and interest in and to any Intellectual Property made or conceived in the course of the APERIO Services or which relates to the Software or the APERIO Services.
2. Feedback. Customer may provide, or APERIO may solicit, input regarding the APERIO Services or Software, or other assistance relating to the development of the APERIO Services or Software, including, without limitation, comments, suggestions or other assistance regarding the possible creation, modification, correction, improvement, or enhancement of the APERIO Services or Software or the development of new services or software which extend the services provided by APERIO or through the APERIO Services (collectively “Feedback”). Customer hereby assigns all right, title and interest in and to Feedback to APERIO without restriction and acknowledges that APERIO may utilize and incorporate such Feedback in its products and services.
3. Bankruptcy. If either APERIO or Customer should file a petition under bankruptcy laws, or if an involuntary petition shall be filed against APERIO, the Parties intend that Customer shall be protected in the continued enjoyment of their rights under this Agreement to the maximum extent feasible including, if Customer so elects, the protection conferred upon a licensee under Section 365(n) of Title 11 of the U.S. Code, as amended, or any similar provision of any applicable law. APERIO agrees that it will provide Customer with prompt notice of the filing of any involuntary petition under any bankruptcy laws. The APERIO Services and Software shall be deemed to be “intellectual property” as that term is defined in 11 U.S.C. Section 101(35A) or any successor provision. All written agreements entered into in connection with the Parties’ performance hereunder from time to time, shall be considered agreements “supplementary” to this Agreement for purposes of 11 U.S.C. Section 365(n).
4. Third Party Content and Licenses. Third-party content or links to third-party Web sites may be accessible or made available in connection with the Services or on or through the Software. APERIO is not responsible for the terms and conditions governing Customer’s to or use of third-party content or internet sites, including any applicable privacy policies, and Customer is responsible for reviewing those terms and conditions prior to accessing or using any third-party content or internet sites. APERIO may maintain third party relationships that contribute to the features, content and interoperability of the APERIO Services and Software.

9. Limits on Warranties and Liability

1. Support Remedies. CUSTOMER’S SOLE WARRANTY WITH RESPECT TO THE PERFORMANCE OF APERIO SERVICES AND THE SOFTWARE IS THAT DURING THE SUBSCRIPTION TERM THE SERVICES SHALL PERFORM IN ACCORDANCE WITH ANY DOCUMENTATION PROVIDED BY APERIO, AND THAT, AS THE CUSTOMER’S SOLE REMEDY AND RECOURSE IN THE EVENT OF NON-PERFORMANCE, APERIO WILL EXERCISE COMMERCIALLY REASONABLE EFFORTS TO REMEDY SUCH PERFORMANCE. CUSTOMER ACKNOWLEDGES THAT SOFTWARE PRODUCTS AND SERVICES ARE BEING CONTINUALLY UPGRADED AND IMPROVED AND ARE NOT FREE FROM ERROR.
2. Disclaimer. EXCEPT AS SPECIFIED IN THIS SECTION 9, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, APERIO DISCLAIMS ALL OTHER WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, INTEROPERABILITY WITH ANY PARTICULAR HARDWARE OR SOFTWARE, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. CUSTOMER WILL NOT MAKE ANY WARRANTIES OR REPRESENTATIONS IN APERIO’S NAME OR ON APERIO’S BEHALF.
3. NO CONSEQUENTIAL DAMAGES. NOTWITHSTANDING ANY OTHER TERM OF THIS AGREEMENT, NIETHER PARTY WILL BE LIABLE TO THE OTHER PARTY UNDER ANY CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES WHATSOEVER, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, OR USE.
4. Limits on Liability During Regular Term. DURING THE SUBSCRIPTION TERM, NOTWITHSTANDING ANY OTHER TERM OF THIS AGREEMENT, AND WITHOUT LIMITING THE FOREGOING, EXCLUSIDING LIABILTIY FOR THE FEES FOR SERVICES DUE HEREUNDER, IN NO EVENT SHALL EITHER PARTY’S LIABILITY EXCEED THE AMOUNT OF FEES, COSTS, OR EXPENSES PAID UNDER THIS AGREEMENT DURING THE PRECEEDING TWELVE (12) MONTH PERIOD.
5. Modification of Services or Software. ALL REPRESENTATIONS, WARRANTIES AND COVENANTS PROVIDED HEREIN RELATE SOLELY TO THE APERIO SERVICES AND SOFTWARE AS PROVIDED. ANY MODIFICAITON OR ENHANCEMENT OF THE SOFTWARE OR APERIO SERVICES BY CUSTOMER WITHOUT WRITTEN AUTHORIZATION BY APERIO SHALL RESULT IN ALL SUCH REPRESENTATIONS AND WARRANTIES BEING VOID.

10. Compliance with Law. Each Party shall at all times during the term of this Agreement comply in all material respects with all applicable laws, legislation, rules, regulations, and governmental requirements with respect to the APERIO Services or Software and the performance by each Party of its obligations hereunder.

11. Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, such provision shall be conformed to prevailing law rather than voided, if possible, in order to achieve the intent of the parties and, in any event, the remaining provisions of this Agreement shall remain in full force and effect and shall be binding upon the Parties.

12. Notices. Any notices required to be given or which may be given under this Agreement must be in writing delivered by private overnight mail service, first-class mail, facsimile, or by electronic mail (email) addressed to APERIO at [email protected] with a copy to ____________ and to Customer at the email or address provided to APERIO at the time of placing an Order.

13. Independent Parties. It is the intention of the Parties that APERIO and Customer be independent contractors. Under no circumstances shall either of them be deemed the agent, joint venturer, partner or employee of the other for any purpose. In addition, under no circumstances shall any employee of either Party be deemed the agent, joint venturer, partner or employee of the other Party for any purpose.

14. Assignment. This Agreement may not be transferred or assigned except (a) by either Party in connection with the transfer of substantially all of its equity or assets to a third party (including through a change in control or ownership) (“Sale of Company”) or (b) with the written consent of the other Party, which shall not be unreasonably withheld. The Parties to this Agreement expressly acknowledge that this Agreement includes a software license and that (i) any transfer by APERIO of its business, the APERIO Services and Software and/or its underlying Intellectual Property to a third party will not result in the termination, reduction or restriction of the license grants herein, and such third party on accepting such transfer will be subject to the license grants and other terms of this Agreement and (ii) any transfer by Customer of its business and/or assets to a third party will not result in the expansion or alteration of the scope of such license.

15. Survival. Upon expiration or termination of this Agreement for any reason, those provisions of the Agreement which, by their nature, are intended to survive will survive in accordance with their terms.

16. Governing Law. This Agreement is acknowledged to have been made and must be construed and interpreted in accordance with the laws of the State of Delaware without regard for its conflict of law’s provisions, provided that all questions concerning the construction or effect of patent applications and patents shall be decided in accordance with the laws of the country in which the particular patent application or patent concerned has been filed or granted, as the case may be. Any dispute under this Agreement shall be brought in the state and federal courts having jurisdiction in Delaware, and each party consents to the jurisdiction thereof.

17. Order of Precedence. If any provisions stated in this Agreement and any exhibit hereto are in conflict, the terms of the applicable exhibit shall govern. To the extent the terms of any Order conflict with the terms set forth in this Agreement, the terms of the Order shall govern if they specifically identify the section of this Agreement being modified; in all other cases, the terms of this Agreement shall govern.

18. Force Majeure. Neither Party shall be liable for losses, damages, expenses or other liabilities due to any cause beyond its control, including, acts of God, acts of civil or military authority, labor disputes, failure or delay of suppliers or systems, including communications and power systems, fire, sabotage, war, embargo or acts or omissions of the other party caused by any of such events.

19. Entire Agreement. Unless otherwise specified herein, this Agreement, including all exhibits, appendices and schedules hereto, embodies the entire understanding of the Parties with respect to the subject matter of this Agreement, superseding any prior or contemporaneous representations, either oral or written regarding this matter. This Agreement may be amended or modified only by a writing signed by both Parties. A waiver of any provision of this Agreement shall be effective only if signed by the Party against whom enforcement is sought.