End User License Agreement

END USER LICENSE AGREEMENT

(TransitionManager)

Important – Please read this End User License Agreement carefully.

BY COMPLETING THE ELECTRONIC ACCEPTANCE PROCESS AND USING TRANSITIONAL DATA SERVICES, INC.’S SOFTWARE, PRODUCTS OR SERVICES, YOU REPRESENT AND WARRANT THAT YOU: (i) ARE 18 YEARS OF AGE OR OLDER; (ii) ARE AUTHORIZED TO SIGN THIS AGREEMENT; AND (iii) HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT.

If you do not agree with the conditions set forth in this Agreement, you may choose not to approve, and immediately cease all download, installation and/or use of, the Software (prior to accessing the Software contained on this website (the “Website”) or installed within your computing environment). Once you access the Software on the Website or within your computing environment, you agree to the terms and conditions set forth in this Agreement and agree that this Agreement shall become legal and binding.

1. Binding Effect; Licenses.

1.1 This End User License Agreement (this “Agreement”) is a legal and binding instrument entered into as of the date of electronic acceptance by you (the “Effective Date”), by and between Transitionsal Data Services, Inc. (the “Company” or “TDS”), you. Your use of the Software is further subject to the terms and provisions of the agreement(s) (the “Master Agreement”) between the Company and the individual or entity identified in a Work Order (as defined below) or during the online registration as the “Customer”. The Company reserves the right to amend this Agreement from time to time without notice to Customer or you. The most current version of this Agreement can be reviewed at https://www.transitionaldata.com/end-user-license-agreement/. To the extent there is conflict between this Agreement and the Master Agreement, the terms of the Master Agreement shall govern and prevail.

1.2 During the term of Customer’s subscription of TransitionManager, as set forth during the subscription process or any order or work order form (the “Work Order”) between the Company and Customer, TDS hereby grants to you:

(i) a non-exclusive, non-transferable, right to download, install, have installed, use, remotely access and use and have Authorized Users (defined below) use and remotely access and use TransitionManager (defined below) or components or modules thereof (in each case in object code format only) as set forth in and pursuant to the applicable Work Order (the “License”); or

(ii) during the Work Order Term and the term of License, TDS hereby grants to Customer a perpetual, non-exclusive, non-transferable, royalty-free, license to use the TDS-Owned Materials (as defined below) solely in connection with Customer’s use of TransitionManager pursuant to the License, in each case solely for Customer’s internal purposes only and for no other purpose.

The capabilities, capacities, modules and components of TransitionManager, deployment models, the maximum number of Instances, and/or other features and restrictions of the License are further set forth in the Work Order.

1.3 Customer shall not re-grant or distribute to any third party, other than as specifically stated in Section 1.2, the rights it receives under Section 1.2 unless such third party is identified specifically in the Work Order or from time to time identified to TDS by Customer’s administrator and accepted by TDS (each by electronic mail), such acceptance not to be unreasonably withheld (upon identification or acceptance, a “Third Party”); provided that upon such identification and acceptance such Third Party and its employees shall be included in the definition of Authorized Users hereunder.

1.4 Portions of TransitionManager and the Software contain open-source software (“Open Source Components“) licensed under the terms of the applicable open source licenses (“Open Source Licenses”). Customer is bound by and shall comply with the Open Source Licenses. A request for a listing of the Open Source Components and links to the Open Source Licenses can be made by contacting TDS at support@transitonmanager.com. If the terms of the Open Source Licenses require TDS to make available the corresponding source code and/or modifications (the “Open Source Code“), Customer may obtain the Open Source Code by contacting TDS at support@transitonmanager.com.

2. Customer Obligations.

2.1 Customer shall also be responsible for maintaining the security of any account information or passwords provided in connection with the access and use of TransitionManager, including but not limited to administrative and user passwords (collectively, the “Customer Account Information”), and for all uses of the Customer Account Information by parties other than by TDS and persons over which TDS has control.

2.2 Any failure by TDS to perform or any delay in the performance by TDS of its obligations under this Agreement caused by a failure of Customer to perform as required in this Agreement or an applicable Work Order shall not constitute a breach of this Agreement by TDS.

3. Fees; Payments.

3.1 In consideration for provision of the Licenses, Customer agrees to pay TDS the fees set forth in each Work Order (collectively, the “Fees”) in accordance with the payment terms set forth herein.

3.2 Customer agrees to pay all Fees in U.S. Dollars within thirty (30) days of the date of invoice from TDS, unless otherwise stated in the Work Order. Payments not made within thirty (30) days of the date of the invoice shall bear interest at the rate of 1.5% per month commencing as of the due date of such invoice, until fully paid. In addition, Customer shall be responsible for reimbursing TDS for any costs incurred by TDS in connection with the successful collection of any unpaid amounts, including reasonable attorneys’ fees. Customer shall be responsible for all taxes associated with Licenses other than U.S. taxes based on TDS’s net income.

4. Representations and Warranties; Limited Warranty; Exclusions.

4.1 Each party represents and warrants that (i) it has the legal right to enter into this Agreement and perform its obligations hereunder, (ii) it has the rights and licenses to grant the rights and licenses granted by it in this Agreement, and (iii) it will comply with all applicable laws, rules, and regulations and with agreements to which it is a party.

4.2 TDS warrants to Customer that for a period of thirty (30) days following delivery of TransitionManager to Customer that TransitionManager will perform substantially in conformance with the operation instructions, release notes, user manuals and/or help files and training materials for TransitionManager, whether in electronic or written form (the “Documentation”). TDS does not warrant that TransitionManager will meet all of Customer’s requirements or that the use of TransitionManager will be uninterrupted or error-free. The foregoing warranty applies only to failures in operation of TransitionManager that are reproducible in standalone form and does not apply to: (i) a failure by Customer to operate or access TransitionManager, as applicable, within the systems requirements provided for TransitionManager or Customer’s use of TransitionManager in combination with other products not provided or expressly approved by TDS; (ii) any portion of TransitionManager that is modified or altered by Customer or any third party that is not authorized, in writing, by TDS; (iii) TransitionManager that is accessed or operated in violation of this Agreement or other than in accordance with the Documentation; (iv) failures that are caused by other software or hardware products; or (v) Customer’s failure or refusal to implement maintenance releases.

4.3 To the maximum extent permitted under applicable law, as TDS and its supplier’s entire liability, and as Customer’s exclusive remedy for any breach of the foregoing warranty in Section 4.2, TDS will, at its sole option and expense, promptly repair or replace any of portion of TransitionManager that fails to meet this limited warranty or, if TDS is unable to repair or replace the applicable portion of TransitionManager, terminate the license and refund to Customer a pro-rated portion of the applicable license fees for the period following termination, which shall be paid upon return of the nonconforming item to TDS. The warranty is void if failure of the applicable portion of TransitionManager has resulted from accident, abuse, or misapplication. Any replacement of any portion of TransitionManager will be warranted for an additional 30 days.

4.4 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 4 AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW (AS DEFINED BELOW), TDS MAKES NO OTHER REPRESENTATIONS OR WARRANTIES ABOUT THE LICENSES, TRANSITIONMANAGER, THE TDS-OWNED MATERIALS, OR THE DOCUMENTATION AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTITIES, EXPRESSED OR IMPLIED, INCLUDING WARRANTITIES OF MERCHANTABILITY, NON-INTERRUPTION OF ACCESS, USAGE OR SERVICE, INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.

5. Intellectual Property.

5.1 Definitions:

(a) “Authorized User” means any individual employee or individual contractor of Customer or its affiliate or its customers or advisors identified in the Work Order.

(b) “Instance(s)” means OS Instances and TM Instances, collectively.

(c) “Intellectual Property Rights” means any and all tangible and intangible: (i) rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights, (iv) patents, designs, algorithms and other industrial property rights; (v) intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise, not otherwise described in Section 5.1(d)(i), (ii), (iii), (iv) or (vi); and (vi) registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in any of the foregoing).

(d) “OS Instances” means the count of all physical and virtual servers which are defined and managed within TransitionManager.

(e) “TDS-Owned Materials” means Documentation, manuals, data, data templates, methods of presenting data, information and recommendations pertaining to, arising from or generated through the Licenses or generated through the access or license and use of TransitionManager under this Agreement to the extent that they are not unique to Customer and does not contain Customer Confidential Information (defined below).

(f) “TM Instances” or “TransitionManager Instances” means the count of all TransitionManager installations.

(g) “TransitionManager” means the TransitionManager application software and third party software embedded or incorporated therein (in object form) and components and/or modules thereof (including, but not limited to TransitionManager Accelerate, TransitionManager Insight, and TransitionManager Orchestrate) made available by TDS.

(h) “TransitionManager Accelerate” means the TransitionManager licensed module which provides the capability to automate defined workflows. It also provides the capability to integrate to third-party tools within a workflow.

(i) “TransitionManager Insight” means the TransitionManager licensed module which provides core capabilities to import, visualize, analyze, and report on customer’s asset data. It also provides the capability to automate data import and export processing.

(j) “TransitionManager Orchestrate” means the TransitionManager licensed module for creating, managing, and executing workflows and event runbooks.

5.2 All Intellectual Property Rights and other commercial property rights in and to TransitionManager, improvements thereto (regardless of which Party or its employees or contractors created them), discoveries (regardless of which Party or its employees or contractors created them) and the deliverables as set forth in or produced as a result of a Work Order remain the sole and exclusive property of TDS unless expressly stipulated otherwise in the Work Order (as in particular in situations where they are specifically created or developed by TDS for Customer in accordance with the requirements of Customer); and all data, information and recommendations that are generated through the access or license and use of TransitionManager under this Agreement to the extent they (i) are unique to Customer, or (ii) contain Customer Confidential Information (collectively, the “Customer Materials”), shall be the sole and exclusive property of Customer as applicable.

5.3 As between the parties, TDS retains all right, title and interest in and to TransitionManager and its underlying Intellectual Property Rights which shall be included in the definition of TDS Confidential Information. Except for the rights expressly granted in this Agreement, this Agreement does not transfer to Customer all or any portion of TransitionManager.

5.4 The rights granted in this Agreement are restricted as follows: Customer shall not, and shall not permit others to, (i) reverse engineer, disassemble, decompile, or attempt to reconstruct, identify or discover or otherwise derive the source code, underlying ideas, underlying user interface techniques or algorithms of, or modify, port, translate, localize, or create derivative works based on TransitionManager by any means whatsoever or disclose any of the foregoing; (ii) copy, sell, lease, license, sublicense, market, or distribute TransitionManager or use TransitionManager in any time-sharing or service bureau arrangement, including, without limitation, any use to provide services or process data for the benefit of, or on behalf of, any third party, except as specifically permitted herein, (iii) take any action that would cause any of TransitionManager to be placed in the public domain or to be disclosed to a third party without TDS’s consent; or (iv) remove, modify or alter any TDS or third party copyright notice from any part of TransitionManager, including but not limited to any such notices contained in the physical or electronic media or Documentation or in any web presence or web-enabled notices, code, or other embodiments originally contained in or dynamically or otherwise created by TransitionManager.

5.5 Customer may not remove or export from the United States or permit the export or re-export of the Software or Licenses by a Customer or other third party, TransitionManager in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. The software included as part of TransitionManage are commercial items, as defined in FAR 2.101. Such software is “commercial computer software,” and its related documentation is “commercial computer software documentation,” as described in FAR 12.212. Consistent with FAR 12.212, Customers’ access to and use of such software will be governed by this Agreement.

6. Confidential Information.

6.1 Each of TDS and Customer acknowledge that it will have access to certain confidential information of the other party concerning the other party’s business, plans, Customers’, technology, and products, and other information held in confidence by the other party (“Confidential Information”). Confidential Information will include all information in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of its disclosure, should be considered confidential. Confidential Information will also include, but not be limited to, non-public information relating to the customers of either party, and the terms and conditions and existence of this Agreement. TDS and Customer each agree that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by this Agreement, nor disclose to any third party any of the other party’s Confidential Information (except as required by law or to that party’s attorneys, accountants and other advisors (its “Representatives”) (subject to Section 1.2 with respect to TransitionManager) as reasonably necessary to perform under this Agreement, provided that each party shall make all Representatives, and in the case of Customer, all Authorized Users) aware of the provisions of this Agreement as applicable to such Representatives and Authorized User’s use of the Confidential Information of the other party. A breach of this Agreement by a party’s Representatives, and in the case of Customer, an Authorized User shall constitute a breach of this Agreement by such party. Further, each party shall take all reasonable precautions to protect the confidentiality of the other party’s Confidential Information, which precautions, in any event, will be at least as stringent as it takes to protect its own Confidential Information.

6.2 Information will not be deemed Confidential Information hereunder if such information: (i) is known to the receiving party prior to receipt of it from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; or (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party. The receiving party may disclose Confidential Information pursuant to the requirements of a governmental agency or by operation of law, provided that, unless restricted by order of a governmental agency or otherwise restricted by law, the receiving party provides reasonable notice to the other party of the required disclosure so as to permit the other party to respond to such request for disclosure.

6.3 Notwithstanding the foregoing, Customer agrees that Customer Confidential Information collected manually by TDS and automatically by the Software and/or any other software from Customer and/or Customer’s or its supplier’s hardware and/or software and subsequent disclosures thereof shall be permitted under this Section 6.

7. Indemnification; Limitations.

7.1 Each of TDS and Customer (the “Indemnifying Party”) agree to defend, indemnify and hold the other party and its directors, officers, contractors, and employees (collectively, the “Indemnified Party”) harmless from and against any and all costs, liabilities, fees, losses, and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) to the extent resulting from any claim, suit, action, or proceeding (each, an “Action“) brought by any third party against the Indemnified Party alleging (i) the infringement or misappropriation of any Intellectual Property Right relating to intellectual property of the Indemnifying Party (which in the case of TDS, will include the TransitionManager and the Documentation) or (ii) arising from the misuse of the intellectual property of a third party (which in the case of Customer will include a breach of Section 5.3).

7.2 An Indemnifying Party’s indemnification obligations hereunder shall be subject to (i) receiving prompt written notice of the existence of any Action or Loss from the Indemnified Party; (ii) being able to, at its option, control the defense of such Action; (iii) permitting the Indemnified Party to participate in the defense of any Action; and (iv) receiving the full cooperation of the Indemnified Party in the defense thereof.

7.3 Notwithstanding the foregoing, an Indemnifying Party will not be responsible for any settlement it does not approve in writing. The obligations in Section 7.1 will not apply with respect to any Intellectual Property Right (i) not supplied by the Indemnifying Party, (ii) that is modified after delivery by the Indemnified Party, (iii) is combined with other products, processes or materials where the alleged infringement relates to such combination, (iv) where the Indemnified Party continues allegedly infringing activity after being notified thereof and provided with a modification by the Indemnifying Party that would have avoided the alleged infringement, or (v) in the case of Customer, where Customer’s use of TransitionManager or the third party software provided by TDS (“TDS Third-Party Software”) is not strictly in accordance with this Agreement or the Documentation.

7.4 THE LIABILITY OF TDS AND AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR LOSSES ON ACCOUNT OF ALL CLAIMS OF ANY KIND WHATSOEVER UNDER THIS AGREEMENT, A WORK ORDER, OR RELATING TO THE LICENSES IN THE AGGREGATE, WHETHER ARISING IN TORT OR CONTRACT OR OTHERWISE, WILL NOT BE GREATER THAN THE PAYMENTS CUSTOMER PAID TDS UNDER THE APPLICABLE WORK ORDER. EXCEPT FOR INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF A PARTY HERETO OR THE VIOLATION OF THE CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR LOST PROFITS, OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY WORK ORDER, REGARDLESS OF THE FORM OR BASIS OF SUCH CLAIM.

7.5 AS BETWEEN THE PARTIES, CUSTOMER SHALL BE RESPONSIBLE FOR BACKING UP AND SECURING ALL DATA, FIRMWARE AND SOFTWARE STORED IN OR ON ANY HARDWARE, THE POSSESSION OF WHICH CUSTOMER GIVES TO TDS AS PART OF THE LICENSES. EXCEPT AS MAY BE SPECIFICALLY SET FORTH IN THE WORK ORDER, TDS ASSUMES NO LIABILITY FOR ANY DAMAGE TO, OR LOSS OF, ANY SUCH DATA, FIRMWARE OR SOFTWARE. TO THE EXTENT TDS IS LIABLE FOR ANY DAMAGE TO, OR LOSS OF, HARDWARE POSSESSION OF WHICH CUSTOMER GIVES TO TDS AS PART OF THE LICENSES FOR ANY REASON, SUCH LIABILITY WILL BE LIMITED SOLELY TO THE THEN-CURRENT CASH VALUE OF THE CUSTOMER HARDWARE, EXCLUDING LOST DATA, FIRMWARE AND SOFTWARE AND SUCH PAYMENT SHALL NOT BE LIMITED TO THE LIMITATION SET FORTH IN SECTION 7.4. TDS is only liable for the loss of saved data if Customer has taken care that this data can be reconstructed at reasonable cost by means of a properly conducted data backup in accordance with accepted industry practices. In the context of the above limitation of liability and in terms of the amount, liability is limited to the costs of recovery.

7.6 The parties acknowledge that TDS has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.

8. Term; Termination.

8.1 This Agreement shall commence on the Effective Date and shall continue until terminated in accordance with this Section 8 (the “Term”). Any notice of termination shall be in written form.

8.2 TDS may terminate this Agreement and all Work Orders hereunder or any single Work Order, in particular if Customer materially breaches any term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same.

8.3 Upon the effective date of termination of a Work Order or this Agreement, all rights to access and use TransitionManager or any TDS Third-Party Software under such Work Order shall cease (provided that Customer’s rights under Section 5.2 shall survive). Within thirty (30) days of termination of this Agreement, and subject to Section 5.2, if applicable, each party will return all Confidential Information and Intellectual Property of the other party in its (and in the case of Customer) possession and will not make or retain any copies of such Confidential Information or Intellectual Property. Statutory retention obligations shall remain unaffected. The Confidential Information retained by the parties for the purposes mentioned above and/or copies thereof are subject to a perpetual confidentiality obligation and may only be used for the aforementioned purposes. Upon any termination, TDS will make all Customer Materials and TDS-Owned Materials available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter TDS may, but is not obligated to, delete stored Customer Materials and TDS-Owned Materials.

9. Reserved.

10. Miscellaneous Provisions.

10.1 Except for payment obligations under this Agreement or any Work Order, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, embargo, pandemic or epidemic, riot, sabotage, labor shortage or dispute, governmental act or failure of telecommunications, provided that the delayed party: (i) gives the other party prompt notice of such cause, and (ii) uses its reasonable commercial efforts to promptly correct such failure or delay in performance.

10.3 This Agreement and any Work Order referencing this Agreement shall be governed by, and construed in accordance with, the laws of the State of Massachusetts without reference to the United Nations Convention on Contracts for the International Sale of Goods or conflict of laws principles. The state and federal courts of the State of Massachusetts shall have exclusive jurisdiction over matters arising under or associated with this Agreement and/or any Work Order. Each of the parties consents to the exclusive jurisdiction and venue of such courts and irrevocably waive any objections thereto.

10.5 TDS and Customer agree that there shall be no third-party beneficiaries to this Agreement, including but not limited to the insurance providers for either party.

10.6 In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.

10.7 TDS may assign this Agreement in whole as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets. Neither Party may otherwise assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other Party, and any attempted assignment or delegation without such consent will be void. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.

10.8 Unless otherwise specifically stated herein, any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as listed above for such party on this Agreement or at such other address as may hereafter be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered.

10.9 Each of TDS and Customer is an independent contractor and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between TDS and Customer. Neither TDS nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.

10.10 This Agreement, including all exhibits and attachments incorporated herein by reference, constitutes the complete and exclusive Agreement between Customer and TDS with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. Any additional or different terms in any purchase order or invoice payment by Customer shall be deemed objected to by TDS without need of further notice of objection, and shall be of no effect or in any way binding upon TDS. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument. Once signed, any reproduction of this Agreement made by reliable means (e.g., photocopy, facsimile, scan) is considered an original. This Agreement may be changed only by a written document signed by authorized representatives of TDS and Customer in accordance with this Section 10.10.

10.11 Sections 3, 4, 5, 6, 7, 8 and 10 of this Agreement shall survive the termination of this Agreement for any reason.

Important – Please read this End User License Agreement carefully.

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