Loading...
2023/06/01 Auvik Subscription Services Agreement - ANM Performance SoftwareDocuSign Envelope ID: 9F201CCC-B8B1-4ACD-99E1-066FFCB7CDFDDocuSign Envelope ID: BAEE15DA-781C-44ED-B846-607C8CFF53C9 DocuSign Envelope ID: 9F201CCC-B8B1-4ACD-99E1-066FFCB7CDFD Armando G. Villa, City Manager Tanya Torres, accountspayable@cityofmenifee.us 29844 Haun Road, Menifee, CA 92586 PO# 04518 DocuSign Envelope ID: BAEE15DA-781C-44ED-B846-607C8CFF53C9 ADDENDUM TO AUVIK SUBSCRIPTION SERVICES AGREEMENT THIS ADDENDUM dated this 26th day of April, 2023. BETWEEN: City of Menifee 29844 Haun Road Menifee CA 92586 United States (“Customer”) AND AUVIK NETWORKS INC. 6D-7398 Yonge St #1312 Thornhill, ON L4J8J2 CANADA (Collectively “the parties”) RECITALS: WHEREAS the parties entered a contract, Auvik’s Subscription Services Agreement terms effective from February 3, 2023, included as Exhibit A, and the sales order form (the “Agreement”). WHEREAS the parties mutually agree to amend certain clauses of the Agreement, as set out below (“Addendum”). NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree that the terms of the Agreement, regardless of whether entered into prior to, simultaneously or after the date of this Addendum, are superseded and modified as follows: Subscription Services Agreement: ● Section 2. USE OF SERVICE, subsection 3i, subparagraph API Endpoints is modified and superseded, as follows: API Endpoints. Auvik may change or remove existing API endpoints or fields in API results upon at least 30 days’ notice to Customer, but Auvik will use commercially reasonable efforts to support the previous version of the API for at least 6 months. Auvik may add new API endpoints or fields in API results without prior notice to Customer. In the event Auvik changes or removes API endpoints pursuant to this paragraph, Customer may, in its sole discretion, DocuSign Envelope ID: 9F201CCC-B8B1-4ACD-99E1-066FFCB7CDFDDocuSign Envelope ID: BAEE15DA-781C-44ED-B846-607C8CFF53C9 terminate this Agreement by giving thirty (30) days written notice to Auvik, or may proceed under this Agreement with the modified API endpoints. ● Section 5. MUTUAL CONFIDENTIALITY AND DATA LOCATION, subsection 5d is modified and superseded, as follows: d. Data Security and Location and Sub Processors. o Data Security. More information on Auvik’s data security practices is located at: https://www.auvik.com/system-security (Security Measures). The security measures used to protect Customer Data shall be commercially common among software providers and shall not be materially less protective than the Security Measures used by Auvik in protecting its own data and information. In addition to the foregoing, Auvik shall notify Customer as soon as is reasonably practicable on becoming aware, but certainly within forty-eight hours (48), of any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to personal data. In addition to the foregoing, the Parties will cooperate in good faith to communicate regarding other cyber security events in each Party’s network which present a substantial risk of migrating to impairing the other Party’s network. o Selection of Data Storage Region. While Auvik has its headquarters in Canada, each Customer selects the region where the Customer Data will be stored. More information is located at (and for Auvik SaaS Management services, different data storage terms apply and are described at this link): Auvik Regions article. Customer’s Data for the purposes of this Agreement will be stored in the United States. o Auvik will not change the country in which the Customer Data is stored (except with the written permission of Customer). o Sub-Processors. Auvik has standard security controls to verify that its sub- processors’ security controls are substantially no less protective of Customer Data than the applicable Auvik’s security controls (including in respect of European customers for the Service, establishing the existence of or implementing, where required, contractual or other mechanisms to ensure adequate safeguards for the processing and any transfer of personal data as defined by privacy laws and regulations of the European Union, the EEA and their member states, Switzerland and the United Kingdom applicable to any personal data, as amended or replaced (Applicable Data Protection Law). o Customer grants Auvik the right to appoint third party sub-processors where appropriate and in compliance with Applicable Data Protection Law (see this link for more information here). Customer will be notified of any changes to the sub processors via electronic notices. ● Subsection 11a. Entire Agreement and Changes is modified and superseded, as follows: This order is subject to the version of the Subscription Services Agreement in effect at the time of the order (“Current Agreement”). Any modification or replacement of the Current DocuSign Envelope ID: 9F201CCC-B8B1-4ACD-99E1-066FFCB7CDFDDocuSign Envelope ID: BAEE15DA-781C-44ED-B846-607C8CFF53C9 Agreement during the Initial Term will take effect upon renewal of your subscription except to the extent the modification may be necessary for compliance with applicable law or to reflect new features or products (“Necessary Changes”). In such case, the modification(s) will take effect before the end of the Initial Term on the date specified by Auvik. If Customer objects to the modification, as its exclusive remedy, it may terminate the affected order upon written notice to Auvik. On receipt of such notice, Auvik will refund Customer fees prepaid for the remainder of the Term after the effective date of termination, less any unpaid amounts for overage. In such case, Customer must provide notice of objection and termination within 30 days of Auvik providing notice of the modification(s). Subject to Necessary Changes, this Current Agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise, or inducement not included in this agreement is binding. No modification or waiver of any term of this agreement is effective unless both parties sign it, however this agreement may be modified or replaced through an online process provided by Auvik. ORDER OF PRECEDENCE This Addendum, along with the Agreement, constitutes the complete understanding between the parties, and supersedes all prior agreements or understandings, whether written or oral. Except as expressly set forth in this Addendum, the Agreement shall remain in full force and effect in accordance with their terms. In the event of a conflict between Agreement and this Addendum, the terms of this Addendum shall control. MODIFICATION This Addendum shall not be modified or amended except in writing and signed by the parties hereto. Any modification or amendment must specifically reference this Addendum and the Agreement. CONFIDENTIALITY The terms of this Addendum are confidential and may not be publicly disclosed except as required by applicable law, regulation, or rules including without limitation as required by securities laws or rules to the extent such laws and rules are or become applicable to either party, by court order, discovery requests, or subpoenas. GOVERNING LAW This Addendum shall be governed by and construed in accordance with the laws as stipulated in the Agreement. IN WITNESS WHEREOF, this Addendum has been duly executed and delivered by each of the parties as of the date first above written. DocuSign Envelope ID: 9F201CCC-B8B1-4ACD-99E1-066FFCB7CDFDDocuSign Envelope ID: BAEE15DA-781C-44ED-B846-607C8CFF53C9 This Agreement is agreed to by both parties as indicated by their respective signatures below. By signing this Agreement, the signatory for each party certifies and represents that he or she has the actual authority to bind that signatory’s respective party to this Agreement. AUVIK NETWORKS INC. By: ____________________________ Name: ____________________________ Title: ____________________________ Date: ___________________________ CITY OF MENIFEE By: ____________________________ Name: ____________________________ Title: ____________________________ Date: ___________________________ aocupign bnvelope faW 9c2M1CCC-B8B1-4ACa-99b1-MSSccCB7Caca Vice President - Sales May 1, 2023 Jason George Armando G. Villa City Manager Attest: __________________________________ Approved as to Form: ________________________________ DocuSign Envelope ID: BAEE15DA-781C-44ED-B846-607C8CFF53C9 5/23/2023 Appendix A: SUBSCRIPTION SERVICES AGREEMENT PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE. BY USING THE SERVICE,CLICKING AGREE OR OTHER FORM OF ASSENT,YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT.IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER OR A THIRD PARTY,THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON THEIR BEHALF. This agreement is between Auvik Networks Inc.,a Canadian BC corporation (Auvik),and the Customer agreeing to these terms (Customer). 1.SOFTWARE SERVICE This agreement and the applicable order provide Customer and its Affiliates (defined below)access to and usage of a monitoring and management web-based software service,including,without limitation,its features,functions,and user interface,and underlying software,as specified on an order (Service).The provision and use of certain features or Services are subject to Auvik’s Service Specific Terms,which are located at https://www.auvik.com/terms. 2.USE OF SERVICE a.Customer Owned Data.All Customer provided data that is processed by the Service remains the property of Customer,as between Auvik and Customer (Customer Data).Customer represents and warrants to Auvik that Customer has provided all required notices and has obtained all required licenses,permissions,and consents regarding Customer Data for use within the Service under this agreement.Customer grants Auvik the right to use the Customer Data solely for purposes of performing under this agreement and for operating and improving its technology. b.Affiliates and Contractors.Customer,including its Affiliates,may enter into orders with Auvik and its Affiliates.An Affiliate entering into an order agrees to be bound by this agreement as if it were an original party hereto.Customer may allow its Affiliates and contractors to use the Service,provided Customer is responsible for their compliance with the terms of this agreement,and use by its Affiliates and contractors is solely for Customer’s or Affiliate’s benefit.Affiliate means any company controlled by or under common control with the subject entity,directly or indirectly,with an ownership interest of at least 50%. c.Customer Responsibilities.Customer:(i)must keep its passwords secure and confidential and use industry-standard password management practices;(ii)is solely responsible for Customer Data and all activity in its account in the Service;(iii)must use commercially reasonable efforts to prevent unauthorized access to its account,and notify Auvik promptly of any such unauthorized access;and (iv)may use the Service only in accordance with the Service’s applicable technical documentation and applicable law. d.Auvik Support.Auvik must provide Customer support for the Service under the terms of Auvik’s Customer Support Policy (Support),which is located at DocuSign Envelope ID: 9F201CCC-B8B1-4ACD-99E1-066FFCB7CDFDDocuSign Envelope ID: BAEE15DA-781C-44ED-B846-607C8CFF53C9 https://www.auvik.com/terms. 1 ©Confidential Information of Auvik Networks Inc.e.Free Trial Version.If Customer has registered for a trial use of the Service,Customer may access the Service for the specified trial period (unless extended by Auvik in writing or electronically).The Service is provided ‘AS IS’,with no warranty during this time period.All Customer Data will be deleted after the trial period,unless Customer converts its account to a paid Service. f.Third Party Service.The Service supports integrations and other connections to certain third party services (Third Party Service),and it depends on continuing availability of and access to Third Party Service,including application programming interfaces,for full functionality of the Service.Customer is responsible for obtaining all rights and the payment of all fees associated with all Third-Party Service for purposes of this agreement. g.Access to Managed Environment.In order to use the Service,Customer must download and install the Local Software (defined below),as applicable,to Customer’s internal network environment,any external network managed by Customer,and any managed device or application (Managed Environment).As part of the use of the Local Software,Customer authorizes (i)remote communication between the Service and the Managed Environment; (ii)the Service to scan and evaluate the Managed Environment;(iii)the Service to monitor, manage and facilitate Customer-approved changes to the Managed Environment;and (iv) the transfer of collected data to the Service,and represents and warrants to Auvik that it has all rights necessary to grant such authorization.Customer is solely responsible for configuring its Managed Environment for adequate security and protection.Customer is responsible for applying independent business judgment with respect to use of the Service and any decisions from the use of the Service. h.Local Software.The software (collector,agent,extension or similar local software)provided by Auvik as part of the Service (Local Software)is licensed to Customer as follows:Auvik grants Customer a non-exclusive,non-transferable license during the term of an order,to use and copy such software within the Managed Environment in accordance with its technical documentation,solely in connection with the Service. o Updates.The Service may automatically check the version of the Local Software and Customer may be required to use updates to the Local Software to enable the Service to properly perform,which may be automatically downloaded to the Managed Environment.Customer consents to such automatic updates,which may occur without notice. i.API.Auvik provides access to its application-programming interface (API)as part of the Service for no additional fee.Subject to the other terms of this Agreement,Auvik grants Customer a non-exclusive,nontransferable,terminable license to interact only with the Service as allowed by the API,and as follows: o Usage.Customer may not use the API in a manner–as reasonably determined by Auvik–that exceeds reasonable request volume,constitutes excessive or abusive usage,or fails to comply with any part of the API.If any of these occur,Auvik may suspend or terminate Customer’s access to the API on a temporary or permanent basis. o API Endpoints.Auvik may change or remove existing API endpoints or fields in API results upon at least 30 days’notice to Customer,but Auvik will use commercially reasonable efforts to support the previous version of the API for at least 6 months. Auvik may add new API endpoints or fields in API results without prior notice to DocuSign Envelope ID: 9F201CCC-B8B1-4ACD-99E1-066FFCB7CDFDDocuSign Envelope ID: BAEE15DA-781C-44ED-B846-607C8CFF53C9 Customer. 2 ©Confidential Information of Auvik Networks Inc. o Disclaimer.The API is provided on an AS IS basis.Auvik has no liability to Customer as a result of any change,temporary unavailability,suspension,or termination of access to the API. j.Beta.If Customer access any ‘beta’or not generally available features or Services,such features and Services are provided AS IS for testing purposes only and the features and Services are not complete.These features and Services should not be used with production data.Auvik does not represent that any of these features or Services will be generally available and they may change,if they are made generally available. 3.SERVICE WARRANTY a.Warranty.Auvik warrants to Customer that:(i)the Service will perform in material compliance with its technical documentation;and (ii)neither the Service,nor Support (both defined above)nor the Security Measures (defined below)will materially decrease during any paid term.Customer’s exclusive remedy and Auvik’s sole obligation for Auvik’s breach of these warranties will be as described in the “Mutual Termination for Material Breach”and “Effect of Termination”sections set forth in this agreement. b.DISCLAIMER.AUVIK DISCLAIMS ALL OTHER WARRANTIES,INCLUDING,WITHOUT LIMITATION,THE IMPLIED WARRANTIES OF MERCHANTABILITY,TITLE,AND FITNESS FOR A PARTICULAR PURPOSE.WHILE AUVIK TAKES REASONABLE PHYSICAL,TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE,AUVIK DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED.CUSTOMER UNDERSTANDS AND AGREES THAT THE SERVICE MAY NOT BE ERROR-FREE AND THE USE MAY BE INTERRUPTED,AND AUVIK IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD-PARTY SERVICE ISSUES.AUVIK IS NOT LIABLE FOR PROBLEMS INHERENT IN USE OF THE INTERNET OR FOR ISSUES RELATED TO CUSTOMER’S COMPUTERS,NETWORK OR CLOUD PROVIDER ACCOUNTS,OR FOR DECISIONS CUSTOMER MAKES REGARDING ITS CONFIGURATION OF THE SERVICE.THE SERVICE IS ONE TOOL IN CUSTOMER’S CLOUD MANAGEMENT STRATEGY AND DOES NOT REPRESENT A SHIFT IN RESPONSIBILITY FOR CUSTOMER’S OVERALL CLOUD MANAGEMENT. 4.PAYMENT a.Fees and Payment.Customer must pay all fees as specified on the order,but if not specified, then within 30 days of receipt of an invoice.The fees are exclusive of sales,use,withholding, VAT and other similar taxes,and Customer is responsible for payment of such taxes at the rate and in the manner for the time being prescribed by law.If Auvik has the legal obligation to pay or collect taxes for which Customer is responsible under this section,Auvik will invoice Customer and Customer will pay that amount unless Customer provides Auvik with a valid tax exemption certificate authorized by the appropriate taxing authority.This agreement contemplates one or more orders for the Service,which orders are governed by the terms of this agreement. o Credit Cards.If Customer is paying fees using a credit card or another digital payment method supported by Auvik,Customer authorizes Auvik to charge Customer’s DocuSign Envelope ID: 9F201CCC-B8B1-4ACD-99E1-066FFCB7CDFDDocuSign Envelope ID: BAEE15DA-781C-44ED-B846-607C8CFF53C9 account for all fees owed to Auvik using that payment method.Customer must keep all billing account information current to ensure correct and timely payment of amounts due. 3 ©Confidential Information of Auvik Networks Inc.b.Nonpayment.If an invoiced amount is 14 days or more past due,Auvik may suspend Service and Support until the amount is paid in full,provided Auvik has given Customer at least 7 days’prior written or electronic notice that its account is past due. c.Payment Notifications.Customer is solely responsible for keeping its email and contact information with Auvik up to date,for purposes of credit card transactions,any payment communication or other communications related to this agreement.Customer should contact Auvik support with these updates. d.Channel Resale.Notwithstanding the foregoing,if Customer is purchasing the Service through a channel reseller,the authorized terms of the subscription with such channel reseller will control with respect to all pricing and fees;provided,however that Auvik may suspend or terminate Customer’s access to the Service if such channel reseller has not paid Auvik the applicable fees relating to Customer’s use. 5.MUTUAL CONFIDENTIALITY AND DATA LOCATION a.Definition of Confidential Information.Confidential Information means all non-public information disclosed by a party (Discloser)to the other party (Recipient),whether orally, visually,or in writing,that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information).Auvik’s Confidential Information includes,without limitation,the Service,pricing information,and the Local Software.Customer’s Confidential Information includes,without limitation,the Customer Data. b.Protection of Confidential Information.Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care)to:(i)not use any Confidential Information of Discloser for any purpose outside the scope of this agreement;and (ii)limit access to Confidential Information of Discloser to those of its and its Affiliates’employees and contractors who need that access for purposes consistent with this agreement and who are bound by confidentiality obligations with Recipient that are not materially less protective than the confidentiality terms in this agreement. c.Exclusions.Confidential Information excludes information that:(i)is or becomes generally known to the public without breach of any obligation owed to Discloser;(ii)was known to the Recipient before its disclosure by the Discloser without breach of any obligation owed to the Discloser;(iii)is received from a third party without breach of any obligation owed to Discloser;or (iv)is independently developed by the Recipient without use of or access to the Confidential Information.The Recipient may disclose Confidential Information to the extent required by law or court order but will provide Discloser with advance notice to seek a protective order. d.Data Security and Location and Sub Processors. o Data Security.More information on Auvik’s data security practices is located at: https://www.auvik.com/system-security (Security Measures). o Selection of Data Storage Region.While Auvik has its headquarters in Canada,each DocuSign Envelope ID: 9F201CCC-B8B1-4ACD-99E1-066FFCB7CDFDDocuSign Envelope ID: BAEE15DA-781C-44ED-B846-607C8CFF53C9 Customer selects the region where the Customer Data will be stored.More information is located at (and for Auvik SaaS Management services,different data storage terms apply and are described at this link):Auvik Regions article. ▪Auvik will not change the country in which the Customer Data is stored (except with the permission of Customer,where necessary as part of Auvik’s business continuity or disaster recovery plan,and as allowed by law or legal process). 4 ©Confidential Information of Auvik Networks Inc. o Sub-Processors.Auvik has standard security controls to verify that its sub-processors’ security controls are substantially no less protective of Customer Data than the applicable Auvik’s security controls (including in respect of European customers for the Service,establishing the existence of or implementing,where required, contractual or other mechanisms to ensure adequate safeguards for the processing and any transfer of personal data as defined by privacy laws and regulations of the European Union,the EEA and their member states,Switzerland and the United Kingdom applicable to any personal data,as amended or replaced (Applicable Data Protection Law). ▪Customer grants Auvik the right to appoint third party sub-processors where appropriate and in compliance with Applicable Data Protection Law (see this link for more information here).Customer will be notified of any changes to the sub processors via electronic notices. e.Privacy Policy.Any use of personal information collected by Auvik in its role as controller,is governed by Auvik’s Privacy Policy. 6.PROPERTY a.Reservation of Rights.Auvik and its licensors are the sole owners of the Service and the Local Software,including all associated intellectual property rights,and they remain only with Auvik.Customer may not remove or modify any proprietary marking or restrictive legends in the Service or Local Software.Auvik reserves all rights that are not expressly granted in this agreement. b.Restrictions.Customer may not :(i)sell,resell,rent,or lease the Service or use it in a service provider capacity;(ii)use the Service to store or transmit unsolicited marketing emails, libelous,or otherwise objectionable,unlawful,or tortious material,or to store or transmit infringing material in violation of third-party rights;(iii)interfere with or disrupt the integrity or performance of the Service;(iv)attempt to gain unauthorized access to the Service or its related systems or networks;(v)reverse engineer the Service or the Local Software except as allowed by applicable law despite this limitation;or (vi)access the Service or use the Local Software to build a competitive service or product,or copy any feature,function,or graphic for competitive purposes.Auvik may suspend Service to Customer if Auvik believes in good faith that Customer’s use of the Service poses an imminent threat to the security,availability or legality of the Service;in such event,Auvik will work with Customer to address the issue and restore Service as quickly as possible. c.Statistical Information.Auvik may compile statistical information and meta data related to the use and performance of the Service and may make such information (including without limitation,log data which does not contain Customer specific information)publicly available, provided that such information does not identify Customer Data,and there is no means to re DocuSign Envelope ID: 9F201CCC-B8B1-4ACD-99E1-066FFCB7CDFDDocuSign Envelope ID: BAEE15DA-781C-44ED-B846-607C8CFF53C9 identify Customer Data.Auvik retains all intellectual property rights in such information.7.TERM AND TERMINATION a.Term.This agreement continues until the 30th day after all orders have expired,unless earlier terminated as provided below. b.Term of Orders.The term of each order must be specified in the order. 5 ©Confidential Information of Auvik Networks Inc. c.Mutual Termination for Material Breach.If either party is in material breach of this agreement,the other party may terminate this agreement at the end of a written 30-day notice/cure period if the breach has not been cured. d.Return of Customer Data. o Within 30 days after termination,upon request,Auvik will make the Service available for Customer to export Customer Data that is available for export as allowed by the functionality of the Service. o After such 30-day period,Auvik has no obligation to maintain the Customer Data and may destroy it. e.Effect of Termination.If this agreement is terminated for Auvik’s breach,Auvik will refund Customer fees prepaid for the remainder of the term of all orders after the termination effective date,less any unpaid amounts for overage.If this agreement is terminated for Customer’s breach,Customer will pay any unpaid fees for the term of all orders.Upon request,following any termination of this agreement,each party will destroy or return all of the other party’s property that it holds,subject to the “Return of Customer Data”section above. 8.LIABILITY LIMIT a.EXCLUSION OF INDIRECT DAMAGES.TO THE MAXIMUM EXTENT ALLOWED BY LAW,AUVIK IS NOT LIABLE FOR ANY INDIRECT,SPECIAL,INCIDENTAL,OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING,WITHOUT LIMITATION,COSTS OF DELAY;LOSS OF OR UNAUTHORIZED ACCESS TO DATA OR INFORMATION;AND LOST PROFITS,REVENUE,OR ANTICIPATED COST SAVINGS),EVEN IF IT KNOWS OF THE POSSIBILITY OR FORESEEABILITY OF SUCH DAMAGE OR LOSS. b.TOTAL LIMIT ON LIABILITY.TO THE MAXIMUM EXTENT ALLOWED BY LAW,EXCEPT FOR AUVIK’S INDEMNITY OBLIGATIONS OR THE INFRINGEMENT OR MISAPPROPRIATION BY EITHER PARTY OF THE INTELLECTUAL PROPERTY OF THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT,AUVIK’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT,TORT,OR OTHERWISE)DOES NOT EXCEED THE AMOUNT PAID BY CUSTOMER WITHIN THE 12-MONTH PERIOD PRIOR TO THE EVENT THAT GAVE RISE TO THE LIABILITY,EXCEPT THAT THIS CAP ON LIABILITY DOES NOT APPLY TO FEES OWED BY CUSTOMER UNDER AN ORDER. 9.INFRINGEMENT INDEMNITY FOR THIRD PARTY CLAIMS a.Auvik Indemnity.Auvik will defend or settle any third-party claim against Customer to the extent that such claim alleges that the Auvik technology used to provide the Service violates DocuSign Envelope ID: 9F201CCC-B8B1-4ACD-99E1-066FFCB7CDFDDocuSign Envelope ID: BAEE15DA-781C-44ED-B846-607C8CFF53C9 a copyright,patent,trademark,or other intellectual property right,if Customer:promptly notifies Auvik of the claim in writing;cooperates with Auvik in the defense;and allows Auvik to solely control the defense or settlement of the claim. b.Costs.Auvik will indemnify Customer from any infringement claim defense costs Auvik incurs in defending Customer,and Auvik negotiated settlement amounts,and court awarded damages. c.Process.If such a claim appears likely,then Auvik may modify the Service,procure the necessary rights,or replace it with the functional equivalent.If Auvik determines that none of 6 ©Confidential Information of Auvik Networks Inc. these are reasonably available,then Auvik may terminate the Service and refund any prepaid and unused fees,less any overage fees owed. d.Exclusions.Auvik has no obligation for any claim arising from:Auvik’s compliance with Customer’s designs,specification,instructions,or technical information;a combination of the Service with other technology or aspects where the infringement would not occur but for the combination;use of Customer information;or technology or aspects not provided by Auvik.THIS SECTION CONTAINS CUSTOMER’S EXCLUSIVE REMEDIES AND AUVIK’S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS. 10.GOVERNING LAW AND FORUM a.Canadian Customers:For Customers located in Canada,this agreement is governed by the laws of the Province of Ontario,Canada (without regard to conflicts of law principles)for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding may be brought in the courts of the Province of Ontario, Canada,and Customer submits to this personal jurisdiction and venue.Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction.The prevailing party in any litigation is entitled to recover its attorneys’fees and costs from the other party. o English.It is the express will of the parties that this Agreement and all related documents have been drawn up in English.Where Customer’s primary address is in Québec,Canada,then it is the express will of the parties that this Agreement and all related documents be drawn up in English.C’est la volonté expresse des parties que le présent contrat et tous les documents connexes soient rédigés en anglais .Unless,and only to the extent,prohibited by law in Customer’s jurisdiction,any and all disagreements,disputes,mediation,arbitration or litigation relating to this Agreement shall be conducted in the English language,including any correspondence,discovery,submissions,filings,pleadings,oral pleadings, arguments,oral arguments and orders or judgments. b.For All Other Customers:For Customers located outside of Canada,in the event of any dispute between the parties or relating in any way to the subject matter of this agreement, the parties hereto must try to settle the dispute.If they do not reach such a solution within a period of 60 days for any reason,then,upon notice by either party to the other,all disputes must be finally settled by binding arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial or International Arbitration Rules (Rules).The controversy must be submitted to one arbitrator in accordance with the DocuSign Envelope ID: 9F201CCC-B8B1-4ACD-99E1-066FFCB7CDFDDocuSign Envelope ID: BAEE15DA-781C-44ED-B846-607C8CFF53C9 Rules.This agreement is governed by the laws of the State of Delaware (without regard to conflicts of law principles).The arbitration proceedings must take place in the state of Delaware or remotely as allowed by the arbitrator,and will be conducted in English.The decision of the arbitrator is final,conclusive,and binding on the parties. 11.OTHER TERMS a.Entire Agreement and Changes.This agreement and the order and,if applicable,Auvik’s Service Specific Terms,constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements,whether oral or written,related to this subject matter.Customer is not relying on any representation concerning this subject 7 ©Confidential Information of Auvik Networks Inc.matter,oral or written,not included in this agreement.No representation,promise,or inducement not included in this agreement is binding.No modification or waiver of any term of this agreement is effective unless both parties sign it,however this agreement may be modified or replaced through an online process provided by Auvik. b.No Assignment.Neither party may assign or transfer this agreement to a third party,nor delegate any duty,except that the agreement and all orders may be assigned,without the consent of the other party,as part of a merger or sale of all or substantially all a party’s businesses,assets,not involving a competitor of the other party,or at any time to an Affiliate. c.Export Compliance.The Service,the Local Software and technical documentation,and Confidential Information may be subject to export laws and regulations of Canada,the United States and other jurisdictions.Each party represents that it is not named on any Canadian or U.S.government denied-party list.Neither party will permit its personnel or representatives to access any Service in a U.S.-embargoed country or in violation of any applicable export law or regulation. d.Independent Contractors.The parties are independent contractors with respect to each other,and neither party is an agent,employee,or partner of the other party or the other party’s Affiliates. e.Enforceability and Force Majeure.If any term of this agreement is invalid or unenforceable, the other terms remain in effect.Neither party is liable for its non-performance due to events beyond its reasonable control,including but not limited to natural weather events and disasters,labor disruptions,and disruptions in the supply of utilities. f.Money Damages Insufficient.Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party.The other party may seek a court order to stop any breach or avoid any future breach of this agreement. g.No Additional Terms.Auvik rejects additional or conflicting terms of a Customer’s form purchasing document. h.Order of Precedence.If there is an inconsistency between this agreement and an order,the order prevails. i.Survival of Terms.All provisions of this agreement regarding payment,confidentiality, indemnification,limitations of liability,proprietary rights and such other provisions that by fair implication require performance beyond the term of this agreement must survive expiration or termination of this agreement until fully performed or otherwise are inapplicable.The UN Convention on Contracts for the International Sale of Goods does not DocuSign Envelope ID: 9F201CCC-B8B1-4ACD-99E1-066FFCB7CDFDDocuSign Envelope ID: BAEE15DA-781C-44ED-B846-607C8CFF53C9 apply. j.Feedback.If Customer provides feedback or suggestions about the Service,then Auvik (and those it allows to use its technology)may use such information without obligation to Customer.Customer can also submit ideas to Auvik’s Idea Portal as described at: https://www.auvik.com/franklyit/blog/auvik-idea-portal/ [Effective February 3,2023] 8 ©Confidential Information of Auvik Networks Inc. DocuSign Envelope ID: 9F201CCC-B8B1-4ACD-99E1-066FFCB7CDFDDocuSign Envelope ID: BAEE15DA-781C-44ED-B846-607C8CFF53C9