TERMS AND CONDITIONS

By using the Apexa SaaS Platform, you (“User” or “Customer”) agree, on behalf of the company to these Apexa terms and conditions (“T&C Agreement”) between ApexaIQ Inc., a Delaware corporation with a principal place of business at 100 Medway Road, Suite 403, Milford, MA 01757 (“Company”), and Customer. Company, User, and Customer each may be referred to herein individually as a “Party” and, together, as the “Parties.” This T&C Agreement, together with a signed proposal from Company, an applicable executed order form(s), or purchase order (each, an “Order Form”), as may be amended from time to time and in effect comprise the entire agreement between the Parties with respect to the subject matter hereof (the “Agreement”).  The Initial Service Term is defined in the Order Form.  The “Effective Date” is defined as the date that Customer signed the Order Form.

YOU REPRESENT AND WARRANT THAT YOU HAVE THE FULL RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE CUSTOMER. YOU ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT BECOMES BINDING AND EFFECTIVE ON CUSTOMER UPON (1) ACCESS TO OR USE OF THE SAAS PLATFORM BY ANY INDIVIDUAL OF THE COMPANY, OR WHEN CUSTOMER ENTERS INTO A VALID ORDER FORM (AS DEFINED ABOVE), WHICHEVER IS THE EARLIEST (THE “EFFECTIVE DATE”). IF YOU DO NOT AGREE TO COMPLY WITH AND BE BOUND BY THIS AGREEMENT, OR IF YOU DO NOT HAVE AUTHORITY TO BIND THE CUSTOMER, PLEASE DO NOT ACCEPT THIS AGREEMENT OR ACCESS OR USE THE SAAS PLATFORM.

1. DEFINITIONS: The following terms will have the meaning indicated herein and in the space on the Order Form corresponding to such term.
    
   1.1. “Implementation Fee(s)” means the price Company will charge Customer for costs associated with setting up the SaaS Platform for Customer.
   
   1.2. “Implementation of SaaS Platform” means the actions Company needs to take to set up the SaaS Platform so that the Customer can utilize the SaaS Platform.
   
   1.3. “Asset” means a managed or unmanaged endpoint device that is on any network where the endpoint device is treated by the SaaS Platform as a single item (i.e., a server with an operating system, database and application running on it is still regarded as one item). Some examples of Assets are virtual servers, physical servers, VOIP phones, PCs, storage arrays, and network switches.
   
   1.4. “Service Capacity” means the number of Assets that are discovered and reported upon by the SaaS Platform.
   
   1.5. “Order Form” means the definition above and any valid form, written or electronic (order form, signed proposal, purchase order or similar), mutually agreed in writing identifying the SaaS Platform to be made available to Customer pursuant to this Agreement and the respective authorized total usage tier ranges, subscription periods and fees associated with each such SaaS Platform.
   
   1.6. “SaaS Platform” means access to and support of the ApexaIQ Inc. proprietary software platform, a SaaS based platform that provides visibility into the health of a customer’s IT organization, in a single dashboard, accompanied with a risk rating score and an action plan to remediate and improve that score (all of which represent the “Platform”), in accordance with the terms of the Agreement.
   
   1.7.  “Reseller” means an entity that promoted, marketed, resold and/or distributed or administers the SaaS Platform to Customer.
   
   

2. SAAS PLATFORM AND SUPPORT :
   2.1. Subject to the terms of this Agreement, Company will provide Customer the SaaS Platform during the Term. The SaaS Platform is subject to Company’s commercially reasonable policies and practices regarding availability (https://www.apexaiq.com/legal/service-level-agreement/)

3. RESTRICTIONS AND RESPONSIBILITIES:
   
   3.1. Customer will not, directly or indirectly:
   a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the SaaS Platform or any software, documentation or data related to the SaaS Platform (collectively, “Software”); 
   b) modify, translate, or create derivative works based on the SaaS Platform or any Software (except to the extent expressly permitted by Company or authorized within the SaaS Platform);
   c) use the SaaS Platform or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party, including without limitation Customer’s customers, unless expressly permitted by Company under a separate written agreement; or  
   d) remove any proprietary notices or labels. 
   
   3.2. Further, Customer may not remove or export from the United States or allow the export or re-export of the SaaS Platform, Software, or anything related thereto, or any direct product thereof 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.  As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this T & C Agreement and will be prohibited except to the extent expressly permitted by the terms of this T & C Agreement. 
   
   3.3. Customer covenants that Customer will use the SaaS Platform only in compliance with Company’s standard published policies then in effect and all applicable laws and regulations. Although Company has no obligation to monitor Customer’s use of the SaaS Platform, Company may do so and may suspend or otherwise prevent or remedy any use of the SaaS Platform it believes may be (or may be alleged to be) in violation of the foregoing
   
   3.4. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the SaaS Platform, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).  Customer understands and agrees that the Company relies on the connectivity and availability of the Equipment in providing the SaaS Platform and Customer shall be solely responsible for the availability, proper maintenance, operation, connectivity, and any consequences of failure thereof.  Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords, or credentials (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent. 

4. CONFIDENTIALITY: 
   4.1. Each Party (as a “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose certain information it considers confidential or proprietary, including without limitation business, technical or financial information relating to the Disclosing Party’s business (hereinafter, “Confidential Information” or “CI”).  CI includes information marked or otherwise identified as confidential or proprietary, or which a reasonable person familiar with the Parties’ businesses would consider confidential or proprietary or meriting treatment as such. CI of Company includes non-public information regarding features, functionality and performance of the SaaS Platform (“Company Data”). CI of Customer includes non-public data provided by Customer to Company to enable the provision of the SaaS Platform (“Customer Data”).
   
   4.2. CI does not include any information that the Receiving Party can show (a) is or becomes generally available to the public, (b) was lawfully in its possession or known by it prior to receipt from the Disclosing Party, (c) was disclosed to it without obligations of confidentiality by a third party who had the right to make such disclosure, or (d) was independently developed without use of any CI of the Disclosing Party.  
   
   4.3. The Receiving Party shall protect CI received hereunder from unauthorized use, access, or disclosure using at least as much care as it uses to protect its own information of like kind, but in no case using less than reasonable care.
   
   4.4. The Receiving Party may use CI received hereunder only in connection with use or performance of the SaaS Platform or as otherwise expressly permitted herein. No other use is permitted hereunder. 
   
   4.5. The Receiving Party shall not disclose to any third person any CI received hereunder, except that Receiving Party may disclose such CI to its agents, servants, contractors and employees who need to know such information in connection with using or providing SaaS Platform hereunder or exercising Receiving Party’s rights hereunder. Notwithstanding such nondisclosure obligations, if Receiving Party is required to disclose such CI under applicable federal, state, or local law, regulation, or a valid order issued by a court or governmental agency of competent jurisdiction, Receiving Party may comply with such requirement if (a) before making such disclosure Receiving Party timely provides Disclosing Party with prompt written notice of such requirement, to the extent such notice is legally permissible, and (b) Receiving Party renders such assistance as Disclosing Party may request or require, at Disclosing Party’s sole cost and expense, with any and all lawful efforts to prevent, limit, or otherwise oppose such required disclosure, including without limitation the seeking of a protective order or other remedy.  If, after providing such notice and assistance as required herein, the Receiving Party remains subject to a legal order to disclose any CI, the Receiving Party shall disclose no more than that portion of the CI which, on the advice of Receiving Party’s legal counsel, such legal order specifically requires Receiving Party to disclose. 
   
   4.6. The obligations in this Section shall survive termination or expiration of this Agreement for five (5) years, or, with respect to CI that comprises, consists of or constitutes trade secrets, for such longer period as such CI continues to be susceptible of protection as trade secret under applicable law.

5. PROPRIETARY RIGHTS & OWNERSHIP OF INTELLECTUAL PROPERTY:
   5.1. Customer shall own all right, title and interest in and to the Customer Data.  Company shall own and retain all right, title and interest in Company Data and to (a) the SaaS Platform and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation SaaS Platform or support, and (c) all intellectual property rights related to any of the foregoing. Company reserves all rights not expressly granted to Customer in this Agreement. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, revocable, non-sublicensable license to use such Software during the Term only and only in connection with the SaaS Platform. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Company intellectual property rights.  
   
   5.2. Notwithstanding anything herein to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the SaaS Platform and related systems and technologies (including, without limitation, Customer Data, information concerning Customer Data, and data derived therefrom), and  Company will be free (during and after the Term) to (a) use such information and data to improve and enhance the SaaS Platform and for other development, diagnostic and corrective purposes in connection with the SaaS Platform and other Company offerings, and (b) disclose such data solely in aggregate or other de-identified form in connection with its business.  No rights or licenses are granted except as expressly set forth herein.
   
   If Customer or any of its employees or contractors sends or transmits any communications or materials to Company by mail, email, telephone, or otherwise, suggesting or recommending changes to the SaaS Platform or Software, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Company is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Customer hereby assigns to Company on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Company is free to use, without any attribution or compensation to any party, the Feedback and any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Company is not required to use any Feedback. 
   

6. PAYMENT OF FEES: 
   6.1. “Fees” may consist of Service Fees and Implementation Fees (both of which are defined in the Order Form. Company or Reseller (if applicable) reserves the right to change the Fees at the end of any applicable Term upon thirty (30) days prior written notice to Customer. 
   
   6.2. If Company or Reseller do not change the Fees by giving the aforementioned written notice, then the Fees are subject to automatic annual increases not to exceed the greater of five percent (5%) or the annualized change in the Consumer Price Index for All Urban Consumers (CPI-U).
   
   6.3. Audit.  Customer’s use of the SaaS Platform shall include up to the number of Assets defined in the Order Form (as “Service Capacity”) fully executed by both Parties.  Company shall monitor and audit Customer’s use and number of Assets. If Company determines that Customer has exceeded its Service Capacity, then Company or Reseller will notify Customer and within thirty (30) days thereafter Customer shall either: (a) reduce the number of Assets to comply with the agreed upon Service Capacity or (b) purchase additional capacity.
   
   6.4. Company or Reseller will report on and discuss the Assets for the applicable year and any applicable changes to the Fees as a result of increases in Asset counts, at the annual review with Customer. 
   
   6.5. Customer will pay Company or Reseller the then-applicable Fees within thirty (30) days of Company’s or Reseller's invoice date. If Customer’s use of the SaaS Platform exceeds the Service Capacity set forth on the Order Form, Company or Reseller may bill Customer for such usage in addition to the Fees otherwise due, and Customer shall pay such amount as provided herein.
   
   6.6. Customer must raise any claim or allegation that Company or Reseller has invoiced Customer incorrectly by giving written notice thereof no later than ten (10) days after receipt of such invoice, or such claim shall be deemed waived. 
   
   6.7. Undisputed, unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees, and may result in immediate termination of service. Customer shall be responsible for all taxes associated with the SaaS Platform other than U.S. taxes based on Company’s or Reseller's net income.

7. TERM, TERMINATION, SUSPENSION OF SAAS PLATFORM: 
   7.1. This Agreement shall be valid and in effect for the duration of the Initial Service Term. Thereafter, this Agreement automatically shall be extended for successive periods of one (1) year (each, a “Renewal Term” and, together with the Initial Service Term, the “Term”) unless either Party shall give written notice of non-renewal to the other Party at least sixty (60) days prior to the then-applicable expiration date.
   
   7.2. In addition to any other remedies it may have, either Party may terminate this Agreement upon thirty (30) days’ written notice if the other Party materially breaches any of the terms or conditions of this Agreement and fails to cure such breach after receipt of written notice of any such breach. Notwithstanding the above, the Company may terminate this Agreement immediately for cause in the event Customer fails to make a payment when due.
   
   7.3. Notwithstanding anything to the contrary in this Agreement, Company may temporarily suspend Customer’s access to any portion or all of the SaaS Platform (a “Service Suspension”) if:
   

   (a) Company reasonably determines that:  

   (i) there is a threat or attack on any of the Company’s SaaS Platform, Software, and intellectual property;

   (ii) Customer’s use of Company’s SaaS Platform, Software, and/or intellectual property disrupts the delivery, maintenance, or provision of Company’s SaaS Platform, Software or intellectual property, or poses a security risk to the Company’s SaaS Platform, Software or intellectual property or to any other customer or vendor of Company;

   (iii) Customer is using the Company’s SaaS Platform, Software, and intellectual property for fraudulent or illegal activities or otherwise in breach hereof;

   (iv) subject to applicable law, Customer has (a) ceased to conduct its business in the ordinary course, (b) made an assignment for the benefit of creditors or similar disposition of its assets, or (c) become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or  

   (v) Company’s provision of the SaaS Platform to the Customer is prohibited by applicable law; or 

   (b) Any vendor of Company suspends or terminates Company’s access to or use of any third-party SaaS Platform or SaaS Platform required to enable Customer to access the SaaS Platform.
   
   7.4. Company shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the SaaS Platform following any Service Suspension. Company shall use commercially reasonable efforts to resume providing access to the SaaS Platform after the circumstances giving rise to the Service Suspension are resolved. Company will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension.

8. WARRANTY AND DISCLAIMER: Company shall use reasonable efforts consistent with prevailing industry standards to maintain the SaaS Platform in a manner which minimizes errors and interruptions in the SaaS Platform and, if Company performs Implementation SaaS Platform, it shall perform them in a professional and workmanlike manner. SaaS Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, such as failure of Customer’s Equipment. Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. COMPANY DOES NOT WARRANT THAT THE SAAS PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SAAS PLATFORM. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SAAS PLATFORM AND IMPLEMENTATION SAAS PLATFORM ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.  

9. INDEMNITY: Company shall indemnify Customer against liability to third parties resulting from infringement by the SaaS Platform of any United States patent or copyright, or Company’s misappropriation of any trade secret, provided Customer (a) gives Company prompt written notice of any and all threats, claims and proceedings related thereto (collectively, “Claims”) and (b) gives Company reasonable assistance and the opportunity to assume sole control over defense and settlement of Claims; Company will not be responsible for any settlement it does not approve in writing.  The foregoing obligations do not apply with respect to portions or components of the SaaS Platform (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other SaaS Platform, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the SaaS Platform is not strictly in accordance with this Agreement.  If, due to a claim of infringement, the SaaS Platform are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (1.) replace or modify the SaaS Platform to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (2.) obtain for Customer a license to continue using the SaaS Platform, or (3.) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the SaaS Platform.

10. LIMITATION OF LIABILITY:
    10.1. Notwithstanding anything herein to the contrary, except for gross negligence, or bodily injury of a person, neither Company nor its suppliers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors or employees shall be responsible or liable for:
    a) any matter beyond company’s reasonable control;
    b) any indirect, exemplary, incidental, special or consequential damages; or
    c) any (i) error in or interruption of use of the SaaS Platform, (ii) loss or inaccuracy or corruption of data, (iii) cost of procurement of substitute goods, SaaS Platform or technology, or (iv) loss of business

    Notwithstanding anything herein to the contrary, in no case shall Company’s aggregate liability hereunder exceed the fees paid by Customer to Company for the applicable SaaS Platform under this Agreement in the twelve (12) months prior to the act that gave rise to the liability, in each case, whether or not Company has been advised of the possibility of such damages. The existence of multiple claims by any one party or from multiple parties with respect to the same underlying acts, omissions or occurrences will not expand this limit.
    10.2. The limitations do not apply to breaches of Section 4 (Confidentiality) or Section 5(Proprietary Rights) or to any Party’s misappropriation of the other Party’s intellectual property.
    10.3. The foregoing limitations shall apply regardless of the nature of any claim or theory of liability, whether under contract, tort, negligence, strict liability or other theory. 

11. PUBLICITY: Unless otherwise expressly specified in a Purchase Order or requested in writing, Company may identify Customer as a customer and may use Customer’s name, corresponding trademark, or logo on Company’s website, customer lists, blogs, and other marketing materials and public communications.

12. ASSIGNMENT: Neither party may assign, transfer, or sublicense this Agreement, or delegate its duties hereunder, except with the other Party’s prior written consent, except that Company may transfer and assign any or all of its rights and delegate any or all its duties under this Agreement in connection with a merger or acquisition, provided assignment is not to a direct competitor of the other Party and written notice is provided to the other Party and transferee is capable and agrees to be bound by the provisions of this Agreement.

13. SEVERABILITY: If any provision of this Agreement is found to be unenforceable or invalid by a court of competent jurisdiction, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

14. NO AGENCY: This Agreement does not create any agency, partnership, joint venture, or employment relationship. Customer has no authority of any kind to bind Company or act on Company’s behalf in any respect whatsoever.

15. NOTICES: All notices under this Agreement must be in writing and sent to the applicable Party’s address of record and will be deemed to have been duly given (a) when received, if personally delivered; (b) when delivered by electronic mail to the recipient, cc to the Parties’ legal department; (c) upon delivery, or attempted delivery if delivery is refused, if sent by certified or registered mail, return receipt requested and to the address indicated in the signature block of this Agreement.  A Party may change its address of record by giving written notice thereof as provided herein.

16. GOVERNING LAW: This Agreement, the interpretation hereof, and any and all disputes arising hereunder shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions.

17. ARBITRATION: With the exception of actions for equitable relief, any and all disputes or controversies, whether of law or fact of any nature whatsoever arising from or respecting this Agreement, shall be decided by arbitration by the American Arbitration Association (“AAA”) and in accordance with its commercial arbitration rules and regulations before a single arbitrator. Arbitration shall take place in Boston, Massachusetts, or any other location mutually agreeable to the parties.

18. EQUITABLE RELIEF: Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Sections 3, 4, or 5 would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to seek equitable relief to remedy or enjoin such breach or threatened breach, including without limitation issuance of a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement (a) to post a bond or other security, or (b) to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

19. FORCE MAJEURE: A Party shall not be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for its failure or delay in fulfilling or performing its obligations under this Agreement (except for any obligations to make payments to the other Party hereunder as described herein section 6), when and to the extent such failure or delay is caused by or results from acts beyond the reasonable control of the Party so obliged (“Obliged Party”), including, without limitation, the following events: (a) acts of God; (b) flood, fire, earthquake, explosion, epidemic, pandemic, or public health emergency; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; and (g) other similar events beyond the reasonable control of the Obliged Party.

20. CONSTRUCTION: Unless context or circumstances clearly require otherwise, in this Agreement (a) the use of the singular is deemed to include the plural and vice versa, (b) the use of the masculine is deemed to include the feminine, and vice versa, and (c) the use of “including” is deemed to mean inclusion by way of example and not limitation.

21. ENTIRE AGREEMENT: This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement unless a master services agreement between Customer and Company exists, in which case, any terms in the master services agreement that conflict with this Agreement will supersede those conflicting terms in this Agreement. This Agreement may be executed in identical counterparts which, taken together, shall constitute one and the same legal instrument. Customer’s purchase order, acknowledgement, remittance, or any similar or related document does not and shall not vary or add to the terms of this Agreement. Any waiver, modification, or amendment of this Agreement must be in a writing signed by both parties, except as otherwise expressly herein.