SOFTWARE SUBSCRIPTION AGREEMENT
FusionCharts, Inc.
10801 North Mopac Expressway
Building 1, Suite 100,
Austin, TX, 78759
Phone: (713) 862-5250
BY PROCEEDING TO DOWNLOAD, INSTALL OR USE THE SOFTWARE IN WHICH THIS AGREEMENT IS ELECTRONICALLY EMBEDDED OR BY
OBTAINING A LICENSE KEY FOR THIS SOFTWARE, YOU HEREBY ACKNOWLEDGE AND AGREE TO BE BOUND BY THE FOLLOWING TERMS
AND CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, THEN CLICK “DO NOT ACCEPT,” DO NOT INSTALL OR
USE THE SOFTWARE AND DELETE THE SOFTWARE FROM YOUR COMPUTER SYSTEM. BY INSTALLING OR USING THE SOFTWARE OR BY
CLICKING ON “ACCEPT” YOU ACKNOWLEDGE AND AGREE THAT ON BEHALF OF YOURSELF AND YOUR EMPLOYER YOU HAVE READ THISSOFTWARE LICENSE AGREEMENT CAREFULLY, THAT YOU AND YOUR EMPLOYER AGREE TO BE BOUND BY THIS AGREEMENT AND THATIF APPLICABLE YOUR EMPLOYER HAS INFORMED YOU OF THE RELEVANT PROVISIONS OF THIS AGREEMENT WHICH MAY BE APPLICABLETO YOU. THIS AGREEMENT, SHALL GOVERN YOUR INSTALLATION AND USE OF THE SOFTWARE IN WHICH THIS AGREEMENT IS
ELECTRONICALLY EMBEDDED. FUSIONCHARTS URGES YOU TO CAREFULLY READ THIS AGREEMENT AND ASSESS YOUR USE OF THE
SOFTWARE PRIOR TO INSTALLING OR USING THE SOFTWARE OR MAKING ANY DECISION TO USE OR PURCHASE IT.
THIS SOFTWARE SUBSCRIPTION AGREEMENT, is dated as of the date of, in the case of any Evaluation Software (as defined in Section 16 below),the date of Customer’s acquisition of a License Key, or in the case of any purchase of a license for use of the Licensed Software (as defined below), thedate of the Purchase Order (as defined below) pursuant to which such license is purchased, is between FusionCharts, Inc., a Delaware corporation(“FusionCharts”), and, in the case of any Evaluation Software, the customer to whom temporary Licenses Keys are delivered or, in the case of any purchaseof a license for use of the Licensed Software, the customer set forth on the purchase order pursuant to which such license is purchased (in each case,herein “Customer”), and sets forth the terms and conditions whereby FusionCharts agrees to provide to Customer and Customer agrees to acquire from
FusionCharts one or more limited licenses to install and use certain software and use certain documentation and maintenance services related thereto,owned or licensed by FusionCharts, as set forth on the Purchase Order (as defined below) pursuant to which Customer agrees to subscribe to the softwareand documentation and maintenance services licensed hereby, which is hereby incorporated herein by reference and made a part of this Agreement. To
the extent any terms or conditions contained in the Purchase Order conflict with the terms or conditions contained in this Agreement, the terms andconditions of the Purchase Order shall supersede only those conflicting terms or conditions contained in this Agreement and only to the minimum extent
necessary to harmonize the terms in such Purchase Order with the terms contained herein. The Purchase Order together with the terms and conditionsof this Agreement, shall constitute and be construed as a single agreement consisting of the terms and conditions contained in the Purchase Order together
with the terms of this Agreement. This Agreement specifically supersedes and replaces the terms and conditions of all prior agreements between
FusionCharts and Customer, including, but not limited to, any shrink-wrap agreements, click-wrap agreements or demo or trial agreements which may
accompany or are embedded in FusionCharts’ products or which have been previously in force between the parties. If Customer is evaluating Evaluation
Software (as defined in Section 16 below), then only the terms and conditions of Section 16 below (including those Sections of this Agreement incorporated
therein by reference) will govern Customer’s temporary use of such Evaluation Software (and no other terms of this Agreement shall apply to Customer
or govern Customer’s use of Evaluation Software) and upon purchase of a commercial license for such Evaluation Software, this entire Agreement,
exclusive of Section 16, shall apply to Customer and govern all use of the Licensed Material (as defined below). In consideration of the mutual promises
and agreements contained herein, the parties hereto also agree as follows:1.

Definitions –GENERAL TERMS AND CONDITIONS
Licensed Software or developing a software application
incorporating the Licensed Software.

(a)“Agreement” means this software subscription agreement,
together with all Exhibits, Schedules, Annexes, Purchase Orders
made a part hereof in accordance with the terms of thisAgreement and all amendments, modifications, supplements
and alterations thereto effected in accordance with the terms ofthis Agreement.

(b)“Confidential Information” means all technical and non-technicalinformation in both tangible and intangible form, including, but
not limited to, product design information, software code,technical information, customer information, discounting, costand pricing information, financial information and the results
derived from or methodology employed by Customer in
conducting any benchmark testing of the Licensed Software;
provided that the term “Confidential Information” shall notinclude information which the recipient can show by reasonable
proof (i) to have been known by the recipient prior to the time of
disclosure by the disclosing party, (ii) to have become part of the
public domain through no fault or breach of this Agreement by
the recipient, (iii) to have been disclosed to the recipient in goodfaith by a third party who is not under any obligation ofconfidence or secrecy to the disclosing party at the time suchthird party discloses the information to the recipient or (iv) tohave been compelled to be produced by a court of competentjurisdiction, provided that the recipient shall first give notice tothe disclosing party of any such request or order of the court togive the disclosing party an opportunity to contest or limit said
request or order of the court.

(c)“Developer” shall mean any employee of Customer or
independent contractor working on behalf of Customer who
accesses or uses the Licensed Software or the FusionCharts
API, for the purpose of customizing, implementing or testing the

FusionCharts, Inc.

-1-

(d)

“Derivative Works” means any software programs which aredeveloped by Customer and which incorporate or containmodifications to any part of the Licensed Software in Source
Code form, and including any revision, modification, translation(including compilation or recapitulation by computer),abridgement, condensation, expansion or any other form inwhich the Licensed Software in Source Code form may berecast, transformed, or adapted.

(e)“Error” means any error, defect or omission that (i) is discoveredin the Licensed Software, (ii) is reproducible and (iii) prevents its
operation substantially in accordance with the Licensed
Documentation.

(f)“Licensed Documentation” means the published user manuals
that FusionCharts makes generally available for the Licensed
Software.

(g)“Licensed Material” means the Licensed Software and theLicensed Documentation.

(h)“Licensed Software” means the machine-readable object code
version of (i) the software specified on each Purchase Order,whether embedded on disc, tape, internet download site or othermedia and (ii) all Updates for the Licensed Software that
Customer is entitled to receive in connection with its receipt ofMaintenance Services pursuant to Section 4 of this Agreement.

(i)“License Term” means (A) the initial period of time (the “Initial
Term”) (i) specified on the Purchase Order pursuant to which
Customer agreed to lease the Licensed Material or (ii) to theextent no such initial period is specified on the Purchase Order,
Subscription SLA Ver. 060122ns

a one-year period of time, in each case commencing on the
Effective Date and (B) all subsequent renewals and extensions
thereof effected in accordance with the terms of this Agreement(each, a “Renewal Term”).
(j)“Maintenance Services” means the technical support services
provided by FusionCharts pursuant to Section 4 hereof.

(k)“Named Application” means any application, program, orsoftware product that is developed by Customer and set forth ona Purchase Order.

(l)“Packaged Software Product” refers to a single software
application or suite of commercial software applications built tobe used by clients or customers of Customer or any otherbusiness or consumer end user and is installed on such end
user’s premises (and not deployed as a SaaS or cloud-hosted
application).

not grant Customer any ownership interest in or to the Licensed
Material, but only a limited right and license to install and use theLicense Software and to use the Licensed Materials inaccordance with the terms of this Agreement and eachapplicable Purchase Order. Customer further acknowledges andagrees that the license granted hereunder shall expire
automatically upon expiration or termination of the License Termand the restrictions applicable to Customer’s installation and useof the License Software will vary according to the type ofLicensed Software purchased by Customer and the type of
license purchased by Customer. One or more of the restrictions
set forth in this Section 2 may apply to the Licensed Software
depending upon the type of licensed purchased and the terms
contained in the applicable Purchase Order relating to the
Licensed Software. Customer is encouraged to carefully review
all terms and restrictions contained in this Section 2 and each
Purchase Order. Customer hereby agrees to the following
license restrictions and conditions applicable to the Licensed
Software as set forth in the Purchase Orders delivered by
Customer under this Agreement:(m) “Purchase Order” means (i) FusionCharts’ standard price quote,purchase order, order form or purchase confirmation (including
any purchase confirmation delivered electronically through an
online store owned or controlled by FusionCharts or its
subsidiaries), as such document may be amended,
supplemented or modified from time to time in accordance withthis Agreement or (ii) any other non-FusionCharts price quote,purchase order, order form or purchase confirmation deliveredby Customer to FusionCharts but solely to the extent permitted
by and delivered in accordance with Section 15.

2.

(n)

“Source Code” means, computer programming code or any
computer instructions necessary to compile the Licensed
Software.

(o)“Update” means any revision, enhancement, improvement or
modification to or programming fix for the Licensed Software or
Licensed Documentation which FusionCharts makes generally
available, incorporates into and makes a part of the Licensed
Software or Licensed Documentation and does not separately
price or market.

(i) For all Licensed Software made generally available by
FusionCharts and licensed hereunder by Customer ona “Basic License” basis, Customer may designate one(1) Developer in Customer’s organization (the "Named
Developer") per license (with no right to transfer toanother Developer) who shall have the right to test,
implement, customize and create Derivative Worksfrom the Licensed Software in order to incorporate theLicensed Software in no more than one (1) Named
Application, provided that such Named Application (a)is solely an on-premise installation (not a SaaS or
cloud-hosted application), and (b) be used for
Customer’s internal business purposes only and cannot
be distributed to any person, or entity outside of the
Customer’s organization, whether for or without a fee;(ii)

LICENSE –(a)(b)

Use – Subject to the terms and conditions of this Agreement
including, but not limited to the applicable licensing restrictions
set forth in Section 2(b) below, and subject further to Customer’s
full compliance herewith and according to the scope, time period
and other terms indicated on the applicable Purchase Orderdelivered in connection with this Agreement, FusionCharts
hereby grants Customer and Customer hereby accepts from
FusionCharts, a limited, non-exclusive and non-transferable
right and license during the License Term to install the Licensed
Software on computer hardware that is owned or operated by oron behalf of Customer and to access, use, copy, modify or create
Derivative Works from the Licensed Material subscribed to by
Customer in accordance with the applicable restrictions andconditions contained in this Agreement and to copy the Licensed
Material as permitted by this Agreement; provided, that in no
event shall Customer create any Derivative Work that iscompetitive with or offers substantially the same functionality as
the Licensed Software or any other product or software
application commercially offered by FusionCharts. Customer’s
right to use the Licensed Material shall extend to use by third
parties under written agreement with Customer to provide
outsourcing services for Customer's own internal business
operations; provided, that (i) such third parties have agreed toabide by the terms of this Agreement and (ii) Customer shallremain primarily liable for all acts and omissions by such third
parties. Upon expiration of the License Term this Agreement
and all rights and licenses granted under this Agreement shall
automatically terminate.

(iii) For all Licensed Software made generally available by
FusionCharts and licensed hereunder by Customer onan “Enterprise License” basis, Customer may installand operate such Licensed Software on a network to
be used by up to ten (10) Named Developers perlicense purchased by Customer (which may betransferred to other Developers within Customer’sorganization
upon
prior
writtennoticeto
FusionCharts) who shall have the right to test,
implement, customize and create Derivative Worksfrom the Licensed Software in order to incorporate theLicensed Software in no more than one (1) Named
Application, provided that such Named Application iseither (a) an on-premise installation or a SaaS or
cloud-hosted application used for Customer’s internalbusiness purposes only and cannot be distributed toany person, or entity outside of the Customer’sorganization, whether for or without a fee, or (b)distributed as a Packaged Software Product that is

License Usage and Restrictions – Customer acknowledges
and agrees that, as between Customer and FusionCharts,
FusionCharts or its subsidiaries owns and shall continue to own
all right, title, and interest in and to the License Material,
including associated intellectual property rights under copyright,
trade secret, patent, or trademark laws. This Agreement does

FusionCharts, Inc.

For all Licensed Software made generally available by
FusionCharts and licensed hereunder by Customer ona “Pro License” basis, Customer may install andoperate such Licensed Software on a network to be
used concurrently on different computers by up to five(5) Named Developers per license purchased by
Customer (which may be transferred to other
Developers within Customer’s organization upon priorwritten notice to FusionCharts) who shall have theright to test, implement, customize and create
Derivative Works from the Licensed Software in order
to incorporate the Licensed Software in no more thanone (1) Named Application, provided that such Named
Application (a) may be an on-premise installation or a
SaaS or cloud-hosted application, and (b) may only be
used for Customer’s internal business purposes only
and cannot be distributed to any person, or entity
outside of the Customer’s organization, whether for orwithout a fee. Subject to Section 2(c) below, Customer
shall be entitled to receive the Licensed Software in
Source Code form;-2-

Subscription SLA Ver. 060122ns

embedded as part of Customer’s software product.
Subject to Section 2(c) below, Customer shall beentitled to receive the Licensed Software in Source
Code form;(iv) For all Licensed Software made generally available by
FusionCharts and licensed hereunder by Customer onan “Enterprise Plus License” basis, Customer may
install and operate such Licensed Software on a
network to be used by the number of Named
Developers per license as set forth in a Purchase
Order (which may be transferred to other Developers
within Customer’s organization upon prior written
notice to FusionCharts) who shall have the right totest, implement, customize and create Derivative
Works from the Licensed Software in order toincorporate the Licensed Software in the number ofNamed Applications set forth in the applicable
Purchase Order, provided that such Named
Applications are either (a) an on-premise installation
or a SaaS or cloud-hosted application used for
Customer’s internal business purposes only andcannot be distributed to any person, or entity outsideof the Customer’s organization, whether for or without
a fee, or (b) distributed as a Packaged Software
Product that is embedded as part of Customer’s
software product. Subject to Section 2(c) below,
Customer shall be entitled to receive the Licensed
Software in Source Code form; and(v)

For all Licensed Software made generally available by
FusionCharts and licensed hereunder by Customer ona “per-developer” basis, Customer may install andoperate such Licensed Software on any number ofphysical servers or virtual servers or install and use
any number of instances of the Licensed Software but
Customer shall not access and use such Licensed
Software by more than the one (1) Named Developer
per license purchased by Customer.

(d)

Copies & Disaster Recovery -- Customer may make areasonable number of back-up archival copies of the Licensed
Software. In the event of any outage that results in the complete
failure of the computer system upon which Customer has
installed the Licensed Software, Customer’s right to use theLicensed Software shall include, during the pendency of suchoutage, the temporary right to use the Licensed Software in a
replacement computing environment substantially similar to theoriginal computing environment upon which the Licensed
Software was installed immediately prior to such outage.
Customer shall reproduce all confidentiality and proprietary
notices on each of the copies permitted hereunder and maintainan accurate record of the location of each of the copies.
Customer shall not otherwise copy or duplicate the Licensed
Material. Customer shall not reverse engineer, disassemble,
translate, modify, adapt, or decompile the Licensed Material orapply any procedure or process to the Licensed Material in order
to ascertain, derive, and/or appropriate the source code orsource listings for the Licensed Software or any trade secret orother proprietary information contained in the Licensed
Software.

(e)

Renewal of License - Upon expiration of the Initial Term andeach Renewal Term, all licenses granted under this Agreement
shall automatically renew for an additional 12-month Renewal
Term and FusionCharts will invoice Customer at the then-current
subscription-based list price for such additional License Term
unless FusionCharts or its authorized representatives arenotified by Customer in writing at least thirty (30) days prior to
the expiration of the Initial Term or then-current Renewal Term,
as applicable, that Customer will not renew the licenses granted
hereunder for another Renewal Term.

(f)Other Services – All licenses and Maintenance Services
purchased by Customer in respect of the Licensed Material shallbe governed by this Agreement, together with the applicable
Purchase Orders delivered hereunder. Unless otherwise agreed
by the parties in writing, all other services purchased by
Customer in respect of the Licensed Software, if any, including
implementation services, training services and professional
services (collectively, “Ancillary Services”), shall be governedsolely by a separate written mutually acceptable services
agreement entered into by the parties or, in the absence of suchagreement, FusionCharts’ standard professional services
agreement, and acceptance of the Licensed Material shall not
be contingent upon Customer’s acceptance of any such
Ancillary Services.

Each license is bound to the Named Application set forth on theapplicable Purchase Order and may not be reused on otherapplications, programs or software products. In no event may a
Packaged Software Product be distributed as a SaaS or cloud-hosted
application.
(c)Additional Terms Governing Source Code – The following
additional terms and conditions contained in this Section 2(c)shall apply to all Licensed Software licensed to Customer by
FusionCharts that include a right to receive the Licensed
Software in Source Code form:

3.

(i) Customer may make modifications, enhancements,
Derivative Works and/or extensions to such Source Code;provided however Customer shall not grant, either expressly or
impliedly, any rights, title, interest, or licenses to any suchmodifications, enhancements, Derivative Works and/or
extensions to any third party. Customer hereby agrees to assign
all right, title and interest in and to such modifications,enhancements, Derivative Works and/or extensions that may bemade to the licensed Source Code to FusionCharts. Customer
shall not distribute any portion of the Licensed Software in
Source Code form, or any modification, enhancement,
Derivative Work and/or extension thereto, in Source Code form.
(ii) The Source Code is provided to the Customer for the
purpose of modification, education and troubleshooting. Underno circumstances shall any portion of the Source Code be
distributed, disclosed or otherwise made available to any third
party without the express, prior written consent of FusionCharts.
Under no circumstances may the Licensed Software in Source
Code form be used in whole or in part, as the basis for creatinga product that provides the same or similar, or substantially thesame or similar, functionality as any FusionCharts product,
FusionCharts’ affiliates’ product or that competes in any mannerwith FusionCharts products or FusionCharts’ affiliates’ products.

FusionCharts, Inc.

-3-

DELIVERY AND PAYMENT TERMS –(a)

Delivery – All Licensed Material shall be delivered by
FusionCharts to Customer via electronic delivery using a secureinternet download site. Ownership of the all licenses purchased
hereunder and risk of loss for the related Licensed Materials
shall be deemed to have passed to Customer once
FusionCharts has made the Licensed Material available fordownload by Customer, notified Customer of the availability of
the Licensed Material for download and provided Customer withall License Keys necessary for the installation and operation of
the Licensed Software.

(b)

Payment -- Upon delivery of a Purchase Order by Customer,
FusionCharts shall deliver an invoice to Customer specifying thesubscription license fees payable for the Initial Term. Each year
thereafter during the License Term FusionCharts shall invoice
Customer for all renewal subscription fees due in respect of each
Renewal Term. Customer shall pay all license fees specified ineach invoice within thirty (30) days of Customer’s receipt of suchinvoice. In the event that Customer elects to pay any fees due
hereunder with a credit card, (i) Customer is required to provide
FusionCharts with a valid form of credit card payment and tokeep all such credit card information current and accurate inrespect of all renewal fees, (ii) Customer shall promptly notify
FusionCharts if its credit card has changed or has been declinedand (iii) Customer hereby consents to FusionCharts
automatically processing and charging all fees due by Customer
hereunder, including all renewal subscription fees, to the credit
card submitted by Customer. All fees payable by Customer inrespect of any Ancillary Services may be separately invoiced.
Subscription SLA Ver. 060122ns

Customer’s payment obligation with respect to all license fees
owing hereunder shall be independent of the provision ofAncillary Services, whether or not such Ancillary Services are
separately invoiced. Any late payment of any amount owing
hereunder shall accrue interest at a rate equal to the lesser of (i)15% per annum and (ii) the maximum rate permitted by law.
(c)

Licensed Software or, if not practicable, accept the return of thedefective Licensed Software and refund to Customer the pro rata
pre-paid amount for the remaining portion of the Initial Term or
Renewal Term, as applicable. FusionCharts’ obligations under
this Section 6(b) shall be waived in the event such Error or
breach is due to (I) any defect in or misconfiguration of thecomputer hardware upon which the Licensed Software is
installed, (II) improper handling or use of the software media by
Customer, or (III) an unauthorized alteration, revision orconfiguration of the Licensed Software or to Customer’s
computer system by Customer or its employees. Customer
acknowledges that this Section 6(b) sets forth Customer's soleand exclusive remedy, and FusionCharts’ and its authorized
representatives’ sole and exclusive liability, for any breach of
warranty, Error or failure of the Licensed Software to function
properly.

Taxes – All payments referred to in this Agreement are exclusiveof value added tax, sales tax and any other applicable taxes,
duties or imposts which (with the exception only of those basedon FusionCharts’ income) shall also be payable by Customer inaccordance with applicable law.

4.
MAINTENANCE – FusionCharts does not warrant that the Licensed
Software will operate error-free or may be used error-free. With respect to
the Licensed Software specified in each Purchase Order, upon Customer’s
payment of the license fees associated with such Licensed Software, as
specified in each Purchase Order, FusionCharts shall provide
Maintenance Services for such Licensed Software during the License Termin accordance with this Section 4 and in accordance with the additional
Maintenance Services terms specified in such Purchase Order.
Maintenance Services is included in the subscription license fee and is notseparately charged or invoiced. Maintenance Services includes problem
determinations, reasonable problem resolutions, provisioning of software
program temporary fixes and new releases. Maintenance Services shallalso include any additional Maintenance Services terms specified in thePurchase Order pursuant to which Customer purchased a license to use
the Licensed Software. Maintenance Services shall be provided inaccordance with the additional Maintenance Services terms specified insuch Purchase Order. Maintenance Services shall entitle Customer toreceive, at no additional cost, all Updates.

(c)

7.

5.
PROPRIETARY RIGHTS – Customer shall not acquire, by virtue of
this Agreement, any right or license other than as expressly provided
herein. Customer shall not reproduce the Licensed Material or otherconfidential or proprietary information of FusionCharts, except as provided
in this Agreement. All proprietary rights in and to the Licensed Material
and all Evaluation Software (as defined in Section 16 below), allderivatives, translations, modifications, adaptations, improvements,
enhancements or developments thereof and all confidential or proprietary
information of FusionCharts, including without limitation, all rights under
and with respect to patents, copyrights, trademarks and rights under the
trade secret laws of any jurisdiction shall remain the sole property of
FusionCharts or its applicable licensor, whether recognized by or perfectedunder applicable local law. Customer shall promptly notify FusionCharts ofany infringement of FusionCharts’ proprietary rights of which it becomesaware.
6.

INDEMNITY(a)

Indemnity – Subject to this Section 7 and Section 8 below,
FusionCharts agrees to indemnify, defend and hold harmless
Customer from and against all claims, damages, losses,
liabilities and expenses (including, but not limited to, reasonable
attorneys’ fees) arising out of any claim by a third party assertingthat the Licensed Material or any of Customer’s use thereof,
infringes upon any third party's patent, copyright or trademark,provided that (i) Customer promptly notifies FusionCharts inwriting no later than thirty (30) days after Customer’s notice ofany potential claim, (ii) Customer permits FusionCharts to
defend, compromise or settle the claim, and provided further thatno settlement intended to bind Customer shall be made without
Customer’s prior written authorization and (iii) Customer gives
FusionCharts all available information, reasonable assistance,
and authority to enable FusionCharts to do so.

(b)

Alternative Remedy - If a claim described in Paragraph 7(a)may or has been asserted, Customer will permit FusionCharts,
at FusionCharts’ option and expense, to (i) procure the right tocontinue using the Licensed Material, (ii) replace or modify the
Licensed Material to eliminate the infringement while providing
functionally equivalent performance or (iii) accept the return of
the Licensed Material and refund to Customer the pro rata prepaid amount for the remaining portion of the Initial Term or
Renewal Term, as applicable.

(c)Limitation - FusionCharts shall have no indemnity obligation to
Customer hereunder if the violation or infringement claim resultsfrom (i) a correction or modification of the Licensed Material notprovided by FusionCharts or its authorized representative, (ii)the failure to promptly install an Update, (iii) the combination of
the Licensed Software with other non-FusionCharts softwareand (iv) continuing the allegedly infringing activity after receiving
written notice of such infringement claim from FusionCharts.

LIMITED WARRANTIES
(a)

(b)

Warranty - FusionCharts warrants to Customer that during thefirst thirty (30) days of the Initial Term (the “Warranty Period”) the
Licensed Software shall perform substantially as described in
the accompanying Licensed Documentation. FusionCharts
does not warrant that (i) the Licensed Software will satisfy or may
be customized to satisfy any of Customer's requirements or any
other particular use or (ii) the use of the Licensed Software will
be uninterrupted or error-free. Laws from time to time in force
may imply warranties that cannot be excluded or can only be
excluded to a limited extent. This Agreement shall be read andconstrued subject to any such statutory provisions.
Remedies – If (i) at any time during a License Term, theLicensed Software contains Errors which make the Licensed
Software unable to perform substantially as described in theaccompanying Licensed Documentation or (ii) during theWarranty Period, FusionCharts breaches the warranty set forthin clause (a) above, then Customer shall promptly notify
FusionCharts of such Error or breach and FusionCharts shall (A)use all commercially reasonable efforts to correct such Error or
breach within thirty (30) days of notification or (B) provide
Customer within thirty (30) days of notification with a plan
acceptable to Customer for correcting such Error or breach. Ifsuch Error or breach is not corrected or if an acceptable plan forcorrecting such Error or breach is not established within such
thirty (30) day period, FusionCharts shall replace the defective

FusionCharts, Inc.

Disclaimer - EXCEPT AS EXPRESSLY PROVIDED IN THISAGREEMENT, ALL WARRANTIES, REPRESENTATIONS,INDEMNITIES AND GUARANTEES WITH RESPECT TO THE
LICENSED MATERIAL, WHETHER EXPRESS OR IMPLIED,ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTENSTATEMENTS BY FUSIONCHARTS OR ITS AUTHORIZEDREPRESENTATIVES OR OTHERWISE (INCLUDING, BUT
NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY
OR FITNESS FOR PARTICULAR PURPOSE) ARE HEREBYOVERRIDDEN AND DISCLAIMED.

8.
NO
CONSEQUENTIAL
DAMAGESUNDERNOCIRCUMSTANCES WILL FUSIONCHARTS OR ITS AUTHORIZEDREPRESENTATIVES BE LIABLE FOR ANY CONSEQUENTIAL,
INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR INCIDENTALDAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE,
BASED ON CLAIMS BY CUSTOMER OR ANY THIRD PARTY(INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA,GOODWILL, PROFITS, USE OF MONEY OR USE OF THE LICENSED
MATERIAL, INTERRUPTION IN USE OR AVAILABILITY OF DATA,STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS),ARISING OUT OF BREACH OF EXPRESS OR IMPLIED WARRANTY,
BREACH OF CONTRACT, BREACH OF ANY INTELLECTUAL
PROPERTY RIGHT, MISREPRESENTATION, NEGLIGENCE, STRICT-4-

Subscription SLA Ver. 060122ns

LIABILITY IN TORT OR OTHERWISE, EXCEPT ONLY IN THE CASE OFPERSONAL INJURY WHERE AND TO THE EXTENT THATAPPLICABLE LAW REQUIRES SUCH LIABILITY. IN NO EVENT WILL
THE AGGREGATE LIABILITY INCURRED IN ANY ACTION OR
PROCEEDING BY FUSIONCHARTS OR ITS AUTHORIZEDREPRESENTATIVE EXCEED THE TOTAL AMOUNT ACTUALLY PAIDBY CUSTOMER FOR THE SPECIFIC LICENSED SOFTWARE THATDIRECTLY CAUSED THE DAMAGE.
9.

Material and all copies thereof and (iii) deliver to FusionCharts an affidavit
certifying that Customer has complied with these termination obligations.
The provision of Sections 1, 3, 8 through 15 and 17 shall survive thetermination of this Agreement.
11. U.S. EXPORT RESTRICTIONS - Customer acknowledges that the
Licensed Materials and all related technical information, documents andmaterials are subject to export controls under the U.S. Export
Administration Regulations. Customer covenants and agrees to comply
with all import and export control regulations of the United States withrespect to the Licensed Material. Customer acknowledges that it may not
re-export or divert the Licensed Material or any related technicalinformation, document or material, or direct derivatives thereof, to any
country set forth on the U.S. Department of Commerce’s State Sponsorsof Terrorism (currently, Cuba, Iran, North Korea, and Syria), including any
future changes to the government’s list of State Sponsors of Terrorism.

CONFIDENTIALITY(a)

Confidentiality. – Customer acknowledges that the Licensed
Materials incorporate confidential and proprietary information
developed or acquired by or licensed to FusionCharts and that
all results of testing of the Licensed Software, whether
performed by Customer or another third party, are confidential.
In no event will Customer publish or disclose the results of any
testing or performance specifications of the Licensed Software
without FusionCharts’ express prior written consent. A party thatreceives Confidential Information (the “Receiving Party”) fromthe other party (the “Disclosing Party”) shall not: (i) export or reexport (within the meaning of US laws or other export control
laws or regulations) any Confidential Information, except in strict
compliance with US laws; (ii) reverse engineer any Confidential
Information; or (iii) disclose or make available the Disclosing
Party’s Confidential Information to any of the Receiving Party’s
employees, agents, contractors or consultants or to any third
parties, except those that have agreed in writing to be bound byterms and conditions substantially similar to, and no lessrestrictive with respect to limitations on use and disclosure, thanthose contained in this Agreement and each of which have a“need to know” in order to carry out the purposes set forth in thisAgreement. Each party shall take all reasonable precautions
necessary to safeguard the confidentiality of all Confidential
Information disclosed by the other party, including thoseprecautions (A) taken by the disclosing party to protect its own
Confidential Information and (B) which the disclosing party or its
authorized representative may reasonably request from time totime. Neither party shall allow the removal or defacement of any
confidentiality or proprietary notice placed on the Confidential
Information disclosed by the disclosing party. The placement of
copyright notices on Confidential Information shall not constitutepublication or otherwise impair their confidential nature of suchinformation.

12. EQUITABLE RELIEF – The parties recognize that Sections 5, 9, 11
and 17(h) are necessary for the protection of the business and goodwill of
the parties and are considered by the parties to be reasonable for such
purpose. The parties agree that any breach of such Sections would cause
the other party substantial and irreparable damage and therefore, in theevent of any such breach, in addition to other remedies which may beavailable, the non-breaching party shall have the right to seek specificperformance and other injunctive and equitable relief in a court of law.
13. LICENSE KEY & USE REPORTING - Customer acknowledges thata security code owned and controlled by FusionCharts or its subsidiaries(the "License Key") is required to render the Licensed Software operational
on Customer’s computer hardware during the License Term. Once utilized
to install the Licensed Software on Customer’s computer hardware, noother security code will be required for the Licensed Material to operate onsuch computer hardware in accordance with the terms and restrictions
contained in this Agreement and no other disabling device will prevent the
Licensed Software from operating on Customer’s computer hardware
during the License Term. Further, Customer acknowledges that the
License Key shall expire upon the expiration of the current License Termand that upon such expiration the Licensed Software shall cease to operate
unless and until another License Key is obtained from FusionCharts.
Customer shall not attempt to crack, alter or otherwise derive the License
Key. FusionCharts shall promptly (which in the event of any renewal of a
License Term shall be prior to expiration of the current License Term)provide Customer with all necessary License Keys upon renewal of eachLicense Term and upon any authorized transfer of the Licensed Software
to any other hardware equipment permitted under Section 2(b) of thisAgreement. FusionCharts reserves the right to gather data on license
usage by Customer for each item of Licensed Software, including License
Key numbers, server IP addresses, email addresses of users, domaincounts and other information deemed relevant, to ensure that the Licensed
Software is being used in accordance with the terms of this Agreement.
FusionCharts expressly prohibits domain count overrides without priorwritten approval. Customer hereby consents to FusionCharts gatheringand processing such usage information and agrees not to block,electronically or otherwise, the transmission of data required forcompliance with this Agreement. Any unauthorized use of the Licensed
Software by Customer or other use by Customer in violation of therestrictions contained herein shall be deemed a material breach of thisAgreement. In addition to the foregoing, within ten (10) business days of
Customer’s receipt of FusionCharts’ written request, Customer shallprovide to FusionCharts a written report certifying to FusionCharts thenumber of licenses for Licensed Software installed, used or accessed by
Customer, the identity of the applicable servers, hardware or computers
upon which such licenses are installed and, to the extent applicable, theinstallation location and location and number of users accessing suchlicenses, together with such other information as may be requested by
FusionCharts and necessary to confirm Customer’s compliance with theterms of this Agreement. The auditing, reporting and certification rights andobligations set forth in this Section 13 shall survive termination of thisAgreement for a period of eighteen months..

(b) Disclosure - If an unauthorized use or disclosure of thedisclosing party’s Confidential Information occurs within therecipient party’s enterprise, the recipient party will immediately
notify the disclosing party or its authorized representative andtake, at recipient party’s expense, all steps which may beavailable to recover such Confidential Information and to prevent
its subsequent unauthorized use or dissemination.
10. TERMINATION – Upon 30-days prior written notice to FusionCharts,
Customer may terminate this Agreement; provided, however that
Customer shall not be entitled to a refund (except as expressly set forth in
Section 6(b) and 7(b)) of any amounts paid or a release from orcancellation, waiver or novation of any amount payable, and all suchamounts payable or promised to be paid through the License Term shall
automatically accelerate and be immediately due and payable and shallsurvive such termination of this Agreement. If Customer or any of
Customer’s employees, consultants, authorized representatives or
permitted third parties breach any term or condition of this Agreement,
FusionCharts may terminate this Agreement, without judicial oradministrative resolution or obligation to refund. This Agreement willterminate automatically if Customer ceases to do business, becomesinsolvent, goes or is put into receivership or liquidation, passes a resolution
for its winding up (other than for the purpose of reconstruction or
amalgamation) or for any of the foregoing, makes an arrangement for the
benefit of its creditors, enters into bankruptcy, suspension of payments,
moratorium, reorganization or any other proceeding that relates toinsolvency or protection of creditors’ rights or takes or suffers any similaraction in consequence of debt. Upon the termination of this Agreement for
any reason and upon expiration of the License Term, all rights granted to
Customer hereunder will cease, and Customer will promptly (i) purge theLicensed Software and any related Updates from all of Customer’s
computer systems, storage media and other files, (ii) destroy the Licensed
FusionCharts, Inc.

14. ENFORCEABILITY - If for any reason a court of competentjurisdiction finds any provision of this Agreement, or portion thereof, to be
unenforceable, void, invalid or illegal, that provision shall be enforced to-5-

Subscription SLA Ver. 060122ns

the maximum extent permissible so as to effect the intent of the parties,
and the remainder of this Agreement shall continue in full force and effect.
15.

Evaluation during the period commencing on the date Customer
downloads the Evaluation Software and ending on the expirationof the temporary License Key or trial License Key (including any
extensions thereof authorized by FusionCharts, the “Evaluation
Period”). Customer agrees not to cause or permit the reverse
engineering,disassembly,
modification,translationordecompilation of any Evaluation Software. Customer shall notcopy the Evaluation Software, or create or develop any derivative
software based upon the Evaluation Software.

ENTIRE AGREEMENT(a)

Customer acknowledges that it has read this Agreement,
understands it and agrees to be bound by its terms. Customer
and FusionCharts further agree that, subject to clause (b) below,
this Agreement, together with all Purchase Orders delivered inconnection herewith and all exhibits, schedules and annexes
hereto, is the complete and exclusive statement of theagreement between Customer and FusionCharts andsupersedes all proposals, oral or written, and all othercommunications between the parties relating to the subject
matter of this Agreement, including any shrink-wrap
agreements, click-wrap agreements or demo or trial agreements
which may accompany the Licensed Material or which may havebeen previously in force between the parties. Subject to clause(b) below, this Agreement may not be amended, modified,
supplemented or altered except by a written agreement that issigned by both parties.

(d) Customer acknowledges that all Evaluation Software incorporates confidential and proprietary information developed or
acquired by or licensed to FusionCharts and that all results oftesting of the Evaluation Software, whether performed by
Customer or another third party, are confidential. In no event will
Customer publish or disclose the results of any testing or
performance specifications of the Evaluation Software without
FusionCharts’ express prior written consent. Customer shall not
remove or deface of any confidentiality or proprietary noticeplaced on the Evaluation Software. The placement of copyrightnotices on Evaluation Software shall not constitute publication orotherwise impair their confidential nature of such information.

(b) UNDER NO CIRCUMSTANCES MAY THE TERMS OF THISAGREEMENT OR ANY FUSIONCHARTS PURCHASEORDER BE AMENDED, MODIFIED, SUPPLEMENTED,ALTERED, SUPERSEDED OR REPLACED BY ANY NONFUSIONCHARTS INVOICE OR NON-FUSIONCHARTSPURCHASE ORDER OR OTHER SIMILAR INSTRUMENT
DELIVERED BY CUSTOMER TO FUSIONCHARTS. EACH
PARTY ACKNOWLEDGES AND AGREES THAT, AS A
CONVENIENCE TO CUSTOMER AND ONLY FORCUSTOMER’S INTERNAL ACCOUNTING PROCEDURES,CUSTOMER MAY DELIVER TO FUSIONCHARTS A
CUSTOMER INVOICE OR CUSTOMER PURCHASE ORDEROR OTHER SIMILAR DOCUMENT FOR ANY TRANSACTIONCONTEMPLATED HEREUNDER AND THAT NO ACTION BYFUSIONCHARTS, INCLUDING FUSIONCHARTS’ DELIVERY
OF ANY LICENSED MATERIALS OR ACCEPTANCE OF
PAYMENT, SHALL BE DEEMED TO BE ACCEPTANCE OFANY OF THE TERMS OR CONDITIONS CONTAINED IN
SUCH CUSTOMER INVOICE OR CUSTOMER PURCHASEORDER OR OTHER SIMILAR INSTRUMENT AND SUCHTERMS AND CONDITIONS SHALL BE VOID AND OF NO
FORCE
OR
EFFECT,UNLESSACCEPTEDBYFUSIONCHARTS PURSUANT TO A WRITTEN INSTRUMENTSIGNED BY BOTH PARTIES.
16.

(e) ALLEVALUATIONSOFTWARE
PROVIDEDBY
FUSIONCHARTS IS DELIVERED "AS IS, WHERE IS" AND
FUSIONCHARTS SPECIFICALLY DISCLAIMS ANY AND ALL
WARRANTIES OF ANY KIND INCLUDING WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULARPURPOSE. FUSIONCHARTS DOES NOT WARRANT THATTHE EVALUATION SOFTWARE WILL OPERATE WITHOUTINTERRUPTION OR BE ERROR FREE.
UNDER NOCIRCUMSTANCESWILLFUSIONCHARTSORITSAUTHORIZED REPRESENTATIVES BE LIABLE FOR ANYCONSEQUENTIAL,
INDIRECT,SPECIAL,
PUNITIVE,
EXEMPLARY OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE OR WHETHER BASED ON
CLAIMS BY CUSTOMER OR ANY THIRD PARTY, ARISINGOUT OF OR RELATED TO CUSTOMER’S USE OFEVALUATION SOFTWARE.
IN NO EVENT WILL THE
AGGREGATE LIABILITY OF FUSIONCHARTS OR ITSAUTHORIZED REPRESENTATIVES INCURRED IN ANYACTION OR PROCEEDING RELATING TO CUSTOMER’S USE
OF EVALUATION SOFTWARE EXCEED ONE HUNDREDDOLLARS.
(f) The Evaluation and the evaluation license granted under thisSection 16 shall automatically terminate immediately upon theearliest of (i) the expiration of the Evaluation Period, (ii) the dateupon which Customer purchases a commercial license for such
Evaluation Software and (iii) the date upon which either party
notifies the other party of its termination of the Evaluation. Upon
expiration of the Evaluation Period or the Evaluation, Customer
shall cease using and shall uninstall and destroy the Evaluation
Software unless Customer has purchased a commercial license
for such Evaluation Software on or prior to such expiration.

TRIAL LICENSE
(a)

(b)

If Customer has installed Evaluation Software (as defined below)
and Customer is authorized by FusionCharts to evaluate such
Evaluation Software (as defined below), then only the terms andconditions of this Section 16 (including those Sections of thisAgreement incorporated in this Section 16 by reference) will
govern Customer’s temporary use of such Evaluation Software(and no other terms of this Agreement shall apply to Customer
or govern Customer’s use of Evaluation Software) and upon
subscription to a commercial license for such Evaluation
Software, this entire Agreement, exclusive of this Section 16,
shall apply to Customer and govern all use of such commercial
Licensed Material.
FusionCharts is the owner and provider of certain proprietary
software and documentation that Customer may request to use,from time to time, on a temporary basis for the sole purpose of
testing and evaluating such software prior to purchasing acommercial term license for such software (“Evaluation
Software”). All installation and usage of Evaluation Software by
Customer requires a temporary License Key or trial License Key
to be issued by FusionCharts and Customer is only permitted touse Evaluation Software during the term of the temporary
License Key or trial License Key issued by FusionCharts.

(c) Evaluation Software is provided to Customer solely forevaluation purposes for Customer’s own testing and evaluation
purposes (an “Evaluation”) and upon delivering a temporary
License Key or trial License Key to Customer, FusionCharts
hereby grants Customer a non-transferable, nonexclusive, limited
license to operate and use the Evaluation Software for such
FusionCharts, Inc.
-6-(g) Sections 1, 5, 8, 11, 14, 15 and 17(a) through 17(g) of thisAgreement shall be deemed incorporated by this reference in thisSection 16 and the Evaluation license granted under this Section
16.
17.

MISCELLANEOUS(a)

Customer shall not assign, delegate or otherwise transfer thisAgreement or any of its rights or obligations hereunder to any
other person or entity, whether by contract, merger or by
operation of the law, without FusionCharts’ prior written consent.
In the event of any merger of Customer or a sale of substantiallyall of the assets of Customer in which Customer is not thesurviving entity, Customer may assign or transfer any licenses
granted under this Agreement; provided, that Customer provides
FusionCharts with written notice of such transfer within thirtydays of such merger or sale. Any assignment or delegation inbreach of this Section 17(a) shall be void. This Agreement shallbe binding upon the parties hereto and shall inure to the benefitof the parties hereto and their respective permitted successors
and assigns.
Subscription SLA Ver. 060122ns

(b)

(c)

All notices or approvals required or permitted under thisAgreement must be given in writing and delivered to theappropriate party at the address set forth in this Agreement or in
any Purchase Order delivered in connection with thisAgreement.

are in addition to any other rights and remedies available to it atlaw or in equity.

The waiver of compliance with or breach of any term or conditionof this Agreement or the failure of a party to exercise any rightunder this Agreement shall in no event constitute a waiver as toany other failure to comply or breach, whether similar or
dissimilar in nature, or prevent the exercise of any right under
this Agreement.

(d) THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATEOF TEXAS WITHOUT GIVING EFFECT TO ANY CHOICE OF
LAW RULES. FUSIONCHARTS AND CUSTOMER HEREBYIRREVOCABLY AGREE ON BEHALF OF THEMSELVESTHAT THE SOLE AND EXCLUSIVE JURISDICTION AND
VENUE FOR ANY LITIGATION ARISING FROM ORRELATING TO THIS AGREEMENT OR THE SUBJECT
MATTER HEREOF SHALL BE IN AN APPROPRIATEFEDERAL OR STATE COURT IN THE STATE OF TEXASLOCATED IN TRAVIS COUNTY.
(e)

(f)

This Agreement is not intended to be nor shall it be construed asa joint venture, association, partnership or other form of businessorganization or agency relationship.

(g)

Headings used in this Agreement are for reference purposes
only and shall not be used to modify the meaning of the terms
and conditions of this Agreement. This Agreement may be
executed in counterparts, all of which shall constitute one single
agreement between the parties hereto.

(h)

In consideration of the mutual covenants contained herein,
including the rights and licenses granted to Customer herein, theparties hereto do hereby agree that for a period of two years
following Customer’s most recent purchase of any licenses orservices, including Maintenance Service, from FusionCharts or
its authorized representative, Customer shall not solicit, induce,
hire, engage, or attempt to hire or engage any employee of
FusionCharts, or in any other way interfere with FusionCharts’contractual or employment relations with any of its employees,
nor will Customer hire or engage or attempt to hire or engage
any individual who was an employee of FusionCharts at any time
during such two-year period.

Unless otherwise specified herein, the rights and remedies of
FusionCharts set forth in this Agreement are not exclusive and[END OF AGREEMENT]

FusionCharts, Inc.

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Subscription SLA Ver. 060122ns