FLEXERA SUBSCRIPTION AGREEMENT*This Flexera Subscription Agreement was certified to be more customer-favorable than 99% of 1,500+ similar
agreements reviewed by TermScout, as of 13 June 2024.

This Flexera Subscription Agreement (“Agreement”) is a legal contract between you, either (a) an individual user or (b) a business organization(in either case the “Customer”), and the Flexera entity listed in the Global Appendix attached hereto (“Flexera”) for the Products and Services(collectively “Products”).
By copying, downloading, accessing, or otherwise using the Product(s), Customer agrees to be bound by the terms of this Agreement. If
Customer is an individual entering into this Agreement on behalf of a company or other legal entity, such individual represents that it has theauthority to bind that entity and its Affiliates to these terms and conditions; if such individual does not have such authority, or if suchindividual does not wish to be bound by the terms of this Agreement, such individual must not install, access or use the Product(s). If Customer
has a separately executed written agreement with Flexera for the Product(s), then that separate agreement will apply and this Agreement
will be of no force or effect with respect to those Product(s). The Effective Date of this Agreement is the date Customer copies, downloads,
accesses, or otherwise uses the Product(s).
1.

Definitions. Terms will have the meanings as ascribed in this Section or as otherwise described throughout this Agreement.
1.1.
1.2.
1.3.
1.4.

1.5.
1.6.

1.7.
1.8.
1.9.
1.10.
1.11.
1.12.
1.13.

Affiliate: any entity in which a party to this Agreement has the legal or practicable ability to procure compliance by the applicable
entity with the terms and conditions of this Agreement.
Background IP: any intellectual property rights owned or created by or on behalf of a party and whether in existence prior to the
Effective Date and/or created thereafter independently of this Agreement.
Business Day: any day which is not a Saturday, Sunday, legal holiday, or other day on which commercial banks are required or
authorized by law to be closed in the applicable Customer’s location.
Confidential Information: any business and/or technical information that is received by the Recipient from the Discloser that a)
is in written, recorded, graphical or other tangible form and is marked "Confidential" or “Trade Secret” or similar designation; b)
is in oral form and identified by the Discloser as "Confidential" or “Trade Secret” or similar designation at the time of disclosure,with subsequent confirmation in writing within thirty (30) days of such disclosure; or c) is received under circumstances thatshould reasonably be interpreted as imposing an obligation of confidentiality.
Customer: the above-named company or Affiliate that may place an Order subject to the terms of this Agreement, as applicable.
Customer Site: any location owned or leased solely by Customer or an Affiliate or that portion of any shared space, such as ashared data center, attributable solely to Customer or such Affiliate, or in the instance of an employee working remotely, thatlocation from which such employee is working while using Customer or Affiliate-provided equipment on which the Software may
be installed.
Data Protection Laws: those laws applicable to the processing of personal data in the relevant jurisdictions, including but notlimited to the General Data Protection Regulation 2016/679.
Discloser: the party disclosing Confidential Information.
Diverse Suppliers: businesses owned by minority, women, lesbian, gay, bisexual or transgender (LGBT), veteran, or persons withdisabilities.
Documentation: the technical specification documentation generally made available by Flexera to its customers regarding the
Products from time to time.
Force Majeure Event: any strike, blockade, war, act of terrorism, riot, natural disaster, sanction, or failure or diminishment of
power or of telecommunications or data networks or services.
Internal Purposes: use of the Products for the benefit of Customer (and/or its Affiliates) for the purpose of managing its own IT
estate.
License Level: the Products usage limits as specified in the Order.
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1.14. Order: either (i) a written order document executed by Customer and Flexera referencing this Agreement and specifying the
Products or Services purchased by Customer hereunder or (ii) a purchase order delivered by Customer for Products or Services,
provided that such purchase order contains the requisite level of detail for the parties to identify the specific Products or Services,quantities, and prices.
1.15. Products: Both SaaS and Software.
1.16. Recipient: the party receiving Confidential Information.
1.17. SaaS: means a software application (including any associated database content provided with or embedded within the software
application as well as the software to be deployed on physical and/or virtual resources) licensed to Customer on a subscription
basis that is owned, delivered, and managed remotely by Flexera as part of a multi-tenant hosted environment, and specified in
an applicable Order.
1.18. Service Levels: the service levels that will apply to SaaS and that are set out at https://www.flexera.com/legal/saas-servicelevels.html or as otherwise agreed in an Order.
1.19. Services: any professional, consulting and training services (not including Support) as further defined in an Order.
1.20. Software: the object code form of software products (including any associated database content provided with or embedded
within the software products) licensed to Customer for installation at Customer Sites. Except as otherwise expressly set forth
herein or in an applicable Order, Software does not include source code.
1.21. Subcontractor: any third party engaged by Flexera to deliver Services.
1.22. Subscription Term: duration of Customer’s license to use the Products as agreed in the applicable Order.
1.23. Support: the support services set out at www.flexera.com/legal/support-terms or as otherwise agreed in an Order.
1.24. Update: means patches, additions, modifications and new versions of a Software product incorporating such patches, additions,and modifications that are provided to Customer by Flexera and that are not included in the initial delivery of the Software.
Updates do not include additions or modifications that Flexera considers to be a separate product or for which Flexera charges
its customers extra or separately.
1.25. Work Product: any custom deliverable created exclusively for Customer in the performance of the Services.
2.

License Grant.
2.1.

2.2.
2.3.
2.4.

2.5.

Grant of License. For the Subscription Term and License Level set forth in an Order, Flexera grants to Customer a non-transferable(except as provided herein), non-sublicensable, non-exclusive license to use the Products in accordance with the Documentation.
The Order will specify the specific Products offering and license model purchased by Customer and the applicable Product SpecificTerms set forth at https://www.flexera.com/legal/product-specific-terms.html will apply.
Delivery. Customer will receive access to SaaS via a website hosted by Flexera and Software via electronic delivery.
Installation and Copies. Customer may install Software at Customer Sites only. Customer may make a reasonable number ofcopies of Software for testing, back-up and archival purposes.
Use by Affiliates and Contractors. Customer’s Affiliates and contractors may also use the licenses granted to Customer, provided
that (a) such use is only for Customer’s or such Affiliate’s benefit, (b) Customer agrees to remain responsible for each such
Affiliate’s and/or contractor’s compliance with the terms and conditions of this Agreement, and (c) Customer’s Affiliate orcontractor is not already an existing customer of Flexera under a separate Order. Use of the Products by the Affiliates, contractors
and Customer in the aggregate must be within the License Level.
License Restrictions. Customer will not (and will require any third party not to):2.5.1. modify, distribute (except as expressly permitted herein), sell, sublicense, rent, lease the Products or Documentation (orany part thereof) or use the same for any reason other than Internal Purposes, provided that Customer may use Products
to manage the IT estate of any third party (other than Affiliates) if it purchases a service provider license as expressly set
forth in an Order;
2.5.2. remove any product identification, proprietary, copyright, or other notices contained in the Documentation;
2.5.3. modify any part of the Documentation or create a derivative work of any part of the Documentation, except for
Customer’s own internal use or otherwise expressly authorized in writing by Flexera;
2.5.4. conduct vulnerability scanning or penetration testing of Flexera systems or the SaaS;
2.5.5. reverse engineer, decompile, or otherwise interrogate any libraries, data or databases incorporated or provided with theProducts to create or improve a similar product;
2.5.6. access any libraries, data or databases incorporated or provided with the Products via any mechanism other than the
Products;
2.5.7. publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source
relating to the Products or Documentation; or
2.5.8. use SaaS and/or Flexera’s data (including any data arising in connection with or derived from Flexera’s data even if it has
been de-identified or anonymized) for machine learning, predictive analytics, nature language processing or other formsof analysis.
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2.6.

2.7.

Intellectual Property Rights. Flexera or its licensors will retain exclusive ownership of all rights, title, and interest in and to the
Products and Documentation. Customer will own any output of the Products, provided that any Background IP included in the
output will remain the property of Flexera. All data or other information in any medium that is generated or processed (including
by way of machine learning, predictive analytics, natural language processing or other forms of analysis) in connection with SaaS,
Products, Documentation of the Services will be owned by Flexera.
Overage. At any time during the Subscription Term set forth in an Order, if Customer usage exceeds its License Level (“Overage”),
Customer will correct the Overage by purchasing additional licenses within thirty (30) days of the Overage. If Customer does notpurchase licenses for the Overage within such thirty (30) day period, Flexera may suspend Customer’s use of the SaaS by providing
fifteen (15) days prior notice. Customer agrees (i) that Flexera may access to view Customer’s instance(s) of the SaaS and (ii) toprovide Flexera with all information reasonably required for the purpose of verifying Customer’s compliance with the License
Level, which may be in the form of a formal certification.

3.

Support and Service Levels. Flexera will provide Support during the applicable Subscription Term and will provide SaaS in accordancewith the Service Levels during the applicable Subscription Term. Flexera will not, during the Subscription Term, make any changes to
Products, Support, or Service Levels that result in a material diminution to the terms agreed herein.

4.

Services.
4.1.
4.2.
4.3.

4.4.
4.5.

5.

Expenses. If Services are performed onsite at Customer facilities, Customer will reimburse Flexera for actual and reasonable travel
expenses. Flexera will adhere to the more stringent of either Flexera’s or Customer’s travel policy (as provided by Customer andagreed to by Flexera).
Customer Policies. Flexera and its personnel will comply with all reasonable policies of Customer applicable to the provision ofServices, provided that such policies do not materially add to or conflict with the terms of this Agreement or the applicable Orderor purport to impose any personal liability on such personnel.
Delays and Cancellations. If performance of Services is delayed due to Customer’s failure to provide required access, Customer
personnel availability or canceled by Customer on less than five (5) Business Days’ notice, Customer will pay Flexera at the rate
set forth in the applicable Order per day, per individual resource designated in the Order who cannot be redeployed by Flexera
using reasonable efforts. In addition, Customer agrees to reimburse any travel expenses which have been incurred and are noncancelable, non-refundable, or non-creditable.
Work Product. Customer will own all Work Product, provided that any Background IP included in the Work Product will remain
the property of Flexera.
Personnel Flexera agrees not to assign any personnel to perform Services at a Customer site who have failed a background checkor who have committed a felony shown by such background check. Flexera will, at a minimum, have performed the following
checks on such personnel to the extent permitted by applicable laws:
4.5.1. Verification of the personnel’s applicable identification number (e.g., social security number) to verify the accuracy of thepersonnel’s identity and current and previous addresses.
4.5.2. A criminal background search of all court records of the personnel’s addresses over the past seven (7) years.
4.5.3. Verification of the personnel’s post high school education or degrees or professional certifications.

Representations and Warranties.
5.1.

5.2.

Mutual Representations and Warranties. Each party represents and warrants to the other party that, as of the applicable Order
Effective Date:
5.1.1. it is duly incorporated and validly existing under applicable laws and in good standing in applicable business locations as
required; and5.1.2. it is duly authorized to enter into and to perform its obligations under this Agreement; and5.1.3. it is in compliance with all applicable laws related to the performance of its obligations under this Agreement.
Flexera’s Representations and Warranties.
5.2.1. Performance Warranty. Flexera represents and warrants to Customer that (i) for a period of ninety (90) days from deliveryof the Software (for Software) or (ii) during the applicable Subscription Term (for SaaS), the Products will operate in
substantial conformity with the Documentation and the Service Levels. Flexera does not warrant that Customer’s use of
the Products will be uninterrupted or error-free. This warranty does not apply to claims arising out of or relating to: (a)use of the Products with hardware or software not required in the Documentation; or (b) defects arising from use of the
Products in violation of this Agreement. In response to a performance warranty claim Flexera will either (a) use
commercially reasonable efforts to provide Customer with an error-correction or work-around that corrects the reported
non-conformity or (b) to replace the non-conforming Products with conforming Products. If the parties determine such
remedies to be impracticable within a reasonable period of time, either party may terminate the part of the Orderapplicable to the non-conforming Products and Flexera will refund any prepaid and unused fees for the non-conforming
Products.
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5.3.

6.

5.2.2. Service Warranty. Flexera represents and warrants that the Services will be performed in a professional and workmanlike
manner and in accordance with generally accepted industry standards and practices.
5.2.3. Anti-Virus Warranty. Flexera represents and warrants to Customer that the Products do not contain any known viruses,
worms, Trojan horses or other harmful, malicious, or destructive code.
5.2.4. No Disabling Devices Warranty. Flexera represents and warrants to Customer that the Products do not include any
functionality that generates messages, data, or reports that are transmitted to Flexera without consent from Customer.
Notwithstanding the foregoing, the Products may include features that will limit use of the Products beyond the License
Level.
5.2.5. Non-Infringement Warranty. Flexera represents and warrants to Customer that the Products do not infringe theintellectual property rights of a third party.
Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER FLEXERA NOR ITS SUPPLIERS MAKE ANY OTHER
REPRESENTATIONS OR WARRANTIES, AND FLEXERA AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL OTHER REPRESENTATIONS AND
WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.

Indemnities
6.1.

General Indemnities. Flexera will defend and indemnify Customer and its employees, officers, board members, agents,
representatives, and officials from and against any and all claims, demands, actions, losses, liabilities, injury, damages, which arebrought by a third party and caused by, arise from or relate to (i) the willful or reckless acts or omissions of Flexera, its employees,
agents, subcontractors or consultants; (ii) wrongful death, bodily injury, or damage to real and tangible property caused by
Flexera; (iii) any material breach by Flexera of the confidentiality obligations set forth in the section of this Agreement titled“Confidential Information”; and (iv) any material breach by Flexera of the data privacy obligations set forth in the section of thisAgreement titled “Data Privacy”.
6.2. Infringement Indemnity. Flexera will defend and indemnify Customer and its employees, officers, board members, agents,
representatives, and officials from and against all claims, demands, actions, losses, liabilities, injury, damages, which are brought
by a third party and caused by, arise from, or relate to an allegation that the Products infringe a patent, copyright, or trademark.
If the Products are, or in Flexera’s opinion use of the Products is likely to be, subject to an infringement claim, or if required bysettlement of the same, Flexera will either: (a) substitute for the Products substantially functionally similar programs; (b) procure
for Customer the right to continue using the Products; or if (a) and (b) are commercially impracticable, (c) terminate the applicable
Order and refund to Customer any prepaid and unused fees for the affected Products.. The foregoing infringement indemnity
does not apply to the extent the infringement claim arises as a result of: (1) modification of the Product (except for setting
configuration options provided in the Product) by or on behalf of Customer; (2) the combination of the Product with other nonFlexera products or processes not specifically required in the Documentation; (3) Customer’s unauthorized use of the Product or
use of the Product in violation of this Agreement; (4) Customer’s failure to implement an Update to the Software which would
avoid the infringement after Flexera provides notice that implementing such Update would avoid the infringement; or (5) third
party software.
6.3. Process. The foregoing indemnity obligations are conditioned upon Customer providing to Flexera (i) prompt written notice ofany claim (but in any event notice in sufficient time for Flexera to respond without prejudice); (ii) the exclusive right to control
and direct the investigation, defense, and settlement (if applicable) of such claim; and (iii) all reasonably necessary cooperation.
Flexera will not agree to any settlement that admits fault or attributes liability or otherwise imposes any affirmative obligation ofCustomer without first obtaining Customer’s prior written consent.
7.

Liability.
7.1.
7.2.
7.3.

7.4.

GENERAL LIABILITY CAP. EXCEPT AS SET FORTH BELOW, EACH PARTY’S ENTIRE LIABILITY TO THE OTHER PARTY WILL NOT EXCEEDTHE AMOUNT ACTUALLY PAID BY CUSTOMER (OR WITH RESPECT TO FEES DUE, PAYABLE) TO FLEXERA DURING THE 12 MONTHPERIOD IMMEDIATELY PRECEDING A CLAIM.
ENHANCED LIABILITY CAP. FLEXERA’S LIABILITY TO CUSTOMER FOR DAMAGES AND EXPENSES ARISING PURSUANT TO ITSINDEMNIFICATION OBLIGATIONS (INCLUDING INDEMNITIES RELATED TO CONFIDENTIALITY, DATA PRIVACY AND INFRINGEMENT)UNDER THIS AGREEMENT WILL NOT EXCEED FIVE MILLION DOLLARS ($5,000,000).
UNLIMITED LIABILITY. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, NO LIMIT OF LIABILITY WILLAPPLY TO A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD, OR FOR DAMAGES ARISING FROM DEATH OR
BODILY INJURY CAUSED BY A PARTY’S NEGLIGENCE OR WILLFUL MISCONDUCT, OR FOR PAYMENT OF FEES, OR FOR ANY OTHERLOSS THAT CANNOT BE EXCLUDED OR LIMITED BY LAW.
DAMAGES WAIVER. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE FOR ANY(i) INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR (ii) LOST PROFITS, LOSS OF USE, LOST DATA,FAILURE OF SECURITY MECHANISMS, OR INTERRUPTION OF BUSINESS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH
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7.5.
8.

Invoicing and Payment.
8.1.
8.2.

8.3.

8.4.
8.5.

9.

DAMAGES IN ADVANCE.
[EMEA ONLY] No person who is not a party to this Agreement is entitled to enforce any terms of the same under the Contracts(Rights of Third Parties) Act 1999.
Invoicing. Unless otherwise agreed in an Order, Flexera will invoice Customer as follows:
8.1.1. for Products, annually in advance; and/or
8.1.2. for Services and associated expenses, monthly in arrears.
Payment. Customer agrees to pay Flexera the fees indicated in each applicable Order within thirty (30) days of Customer’s receiptof the invoice for the applicable Order. All payments are non-refundable (except as expressly set forth in this Agreement). All feesare pre-tax, and Customer will be responsible for all taxes, withholdings, duties, and levies arising from the Order (excluding taxes
based on the real property, personal property, or net income of Flexera). Any late payments will be subject to a service charge
equal to 1% per month of the amount due or the maximum amount allowed by law, whichever is less. If Customer is required towithhold and pay any withholding tax imposed at source on any amount payable to Flexera under this Agreement, then Customer
will deliver to Flexera the original tax receipt or other proof of payment, and Customer’s payment of the balance (after deducting
any such withholding) will constitute payment in full of the amount owed by Customer to Flexera and Customer will assist Flexera
in recovering any withholding tax from the relevant tax authority. If Flexera is required by Customer to use any invoicing portal
or similar service to issue invoices, receive purchase orders, or otherwise contract with Customer, then any fees incurred by
Flexera for Flexera’s use of such portal or service will be billed back to Customer.
Purchase Orders. If Customer requires a separate purchase order to be provided to Flexera for Flexera to invoice Customer,
Customer commits to providing a purchase order within five (5) Business Days of its receipt of license keys from Flexera. In theevent Customer fails to deliver a purchase order within such timeframe, Customer’s signed Order, if there is one, will constitute
Customer’s approval for Flexera to invoice Customer. For multi-year Subscription Terms, Customer must provide a purchase orderfor either (i) the total payable for the entire Subscription Term, or (ii) one (1) year at a time, provided that the first purchase ordermust indicate that it is for the first year of a committed three (3) year Subscription Term; regardless of the purchase order form
selected, if Customer licenses Products for a multi-year Subscription Term, the license is non-cancelable and Customer will beobligated to pay for the total value of the Subscription Term. The parties agree that any additional or conflicting terms andconditions included in a Customer purchase order shall have no force and effect and are hereby rejected.
Purchases Through Resellers. In the event Customer purchases Products via a reseller, the invoicing and payment terms agreed
between Customer and such reseller will apply in lieu of the terms set forth herein.
Renewal. Following the Subscription Term set forth in an Order, licenses will automatically renew for additional periods of three(3) years at a time (each a “Renewal Term”). Fees for each Renewal Term will be equal to the fees payable during the immediately
preceding year plus an uplift of 8% thereon applicable to each year of the Renewal Term, unless agreed otherwise in writing. At
any point, either party may give written notice of its election not to renew, provided such notice is provided no later than sixty(60) days prior to the end of the current Subscription Term.

Term and Termination.
9.1.
9.2.

9.3.

Term. This Agreement is effective as of the Effective Date and will continue until terminated in accordance with its terms.
Termination for Cause.
9.2.1. Either party may immediately terminate this Agreement and/or any related Orders if the other party: (a) fails to cure any
material breach of this Agreement within thirty (30) days after receipt of written notice of such breach; (b) ceases
operation without a successor; (c) seeks protection under any bankruptcy, receivership, trust deed, creditors
arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and notdismissed within sixty (60) days thereafter); or (d) materially violates the other party’s intellectual property rights.
9.2.2. The parties acknowledge that a violation of the sections titled “License Restrictions”, “Overage”, “Payment”, and“Confidential Information” will be deemed to be a material breach of this Agreement.
Effect of Expiration or Termination.
9.3.1. Upon any expiration or termination of an Order, Customer will cease all use of the Products licensed under such Order.
Where Customer terminates an Order for cause, Flexera will refund Customer for all fees paid in advance for Products orServices not yet received, on a pro-rata basis from the termination date to the end of the Subscription Term. Where
Flexera terminates an Order for cause, all fees committed under the terminated Orders will become immediately due andpayable.
9.3.2. Termination of this Agreement or an Order will not automatically terminate any other agreement or order unless theterminating party is entitled to terminate such other agreement or order and includes such other agreements or orders
in its termination notice to the other party.
9.3.3. With respect to SaaS and provided all fees due under the Agreement have been paid, Customer will have up to 30
calendar days from the effective date of the termination or expiration of this Agreement or an Order to access the SaaS
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9.4.
9.5.

solely to retrieve the available Customer content and for no other usage. Thereafter, (i) Customer will have no access to
the SaaS, and (ii) Flexera will have no obligation to retain the Customer content or make the Customer content available
to Customer.
Transition Assistance. Upon any expiration or termination of an Order, Flexera agrees to provide transition Services pursuant toan Order.
Survival. In the event this Agreement is terminated but an Order is still outstanding, this Agreement will continue to apply to theoutstanding Order until such Order expires or is terminated in accordance with this Agreement. Any provision that by the very
nature of which should survive will survive any termination or expiration of this Agreement.

10. Confidential Information.
10.1. Protection of Confidential Information. The Recipient will a) have the right to disclose the Confidential Information only to its
employees, consultants, contractors and Affiliates having a need to know and who have agreed in writing to be bound to
confidentiality terms substantially similar to those contained herein; b) use at least as great a standard of care in protecting theDiscloser’s Confidential Information as it uses to protect its own information of like character, but in any event not less than areasonable degree of care; c) use such Confidential Information only in connection with its rights and/or obligations under thisAgreement; and d) at the Discloser’s option return or destroy any or all Confidential Information upon the Discloser’s demand.
Confidential Information will remain confidential for a period of three (3) years from disclosure. No time limit will apply toConfidential Information marked or otherwise identified as or deemed to be a “Trade Secret”. Any software, documentation or
technical information provided by Flexera (or its agents), performance information relating to the Products, and the terms of thisAgreement will be deemed “Trade Secrets” of Flexera without any marking or further designation.
10.2. Exclusions. The Recipient’s nondisclosure obligation does not apply to information that: (a) was rightfully in its possession or
known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of theRecipient; (c) is rightfully obtained by the Recipient from a third party without breach of any confidentiality obligation; (d) is
independently developed by employees of the Recipient who had no access to such information; or (e) is required to be disclosed
pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order
and with advance notice to the Discloser).
10.3. Equitable Relief. The Recipient acknowledges that disclosure of Confidential Information would cause substantial harm for which
damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Recipient the Discloser will
be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
11. Data Privacy. Where personal data is being processed, the parties will comply with their respective obligations as a data processor anda data controller under the relevant Data Protection Law(s). The Data Processing Agreement (“DPA”) located atwww.flexera.com/legal/dpa as of the Effective Date will apply to the Processing of Personal Data (as each is defined in the DPA), unlessthe parties execute (or have already executed) a different DPA, in which case the executed DPA will apply. For the avoidance of doubt
the SaaS does not require Flexera to have access to any sensitive or special categories of Customer personal data. Flexera will conduct
annual SSAE 16 SOC audits during any Subscription Term for SaaS. Flexera will, upon request, provide Customer a SSAE 16 SOC Type I
and/or II audit report covering the SaaS. Customer agrees that the foregoing fulfills Flexera’s audit obligations under applicable Data
Protection Laws, except for any additional audits required by an applicable data protection authority or regulatory body with authority
over Flexera and Customer.
12. Security. Flexera will provide the SaaS in accordance with the information security terms attached at Schedule 1 to this Agreement.
13. Audit by Customer. Customer may audit Flexera for the purpose of verifying Flexera’s compliance with the terms of this Agreement.
Audits performed subject to this Section will (i) only be performed during the term of this Agreement, (ii) require prior written notice ofat least thirty (30) days, (iii) be conducted remotely and during regular business hours, (iv) not unreasonably interfere with Flexera’s
business activities, (v) be conducted no more than once per year, (vi) not be related to security or privacy, which are covered separately
under this Agreement or the DPA; and (vii) only cover the immediately preceding two (2) years.
14. Evaluation. If Flexera provides a Product as a trial, evaluation, beta version, or proof of concept, or otherwise at no charge, then thefollowing terms shall apply to such Product and take precedence in the event of any inconsistency between this Section “Evaluation”
and any other term or condition in this Agreement: (a) Flexera grants Customer a worldwide, nonexclusive, revocable, nontransferable,
nonsublicensable license to use the Product during the term and within the usage limits identified by Flexera solely for Customer’sinternal evaluation purposes; (b) Flexera may revoke Customer’s Product license at any time for any reason; (c) the following Sectionsof this Agreement shall not apply: (i) “Indemnities”, and (ii) “Flexera’s Representations and Warranties”; (d) to the maximum extent
permitted by applicable law, the Products are provided “as is” and Flexera disclaims all obligations or liability, including any statutory or
implied warranty obligations, and in any event, Flexera’s aggregate liability shall not exceed US $100.00, and (e) in addition to (a) to (d)above for any Product or feature made available as a beta version (i) the beta Product is not an official product and has not beencommercially released for sale by Flexera; (ii) the beta Product may not operate properly, be in final form or fully functional; (iii) the6

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beta Product may contain errors, design flaws or other problems; (iv) Flexera is under no obligation to release a commercial version of
the beta Product, (v) Customer’s use of the beta Product shall be for evaluation and feedback purposes only.
15. General.
15.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party
may assign this Agreement (or any part thereof) without the advance written consent of the other party, except that either party
may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all ofsuch party’s assets or voting securities. No assignment will be effective until the assigning party provides written notice of suchassignment, including the assignee’s written agreement to the terms of this Agreement. Any attempt to transfer or assign thisAgreement except as expressly authorized under this Section will be null and void.
15.2. Subcontracting. Flexera may engage a Subcontractor to perform its obligations hereunder provided that Flexera remains
responsible for the compliance of such Subcontractor with the terms of this Agreement.
15.3. Severability. If any provision of this Agreement is adjudged by any court of competent jurisdiction to be unenforceable or invalid,that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
15.4. Governing Law. This Agreement is governed, without reference to applicable conflicts of law principles, by the laws of thejurisdiction as set forth in the Global Appendix attached hereto (“Governing Law”), which is incorporated herein by reference.
The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information
Transactions Act shall not apply to this Agreement. The language of any litigation or legal proceeding shall be English. The
prevailing party in arbitration or litigation is entitled to recover its reasonable attorneys’ fees and costs from the other party.
CUSTOMER MUST INITIATE ANY CAUSE OF ACTION FOR ANY CLAIM(S) ARISING OUT OF OR RELATING TO THIS AGREEMENT AND
ITS SUBJECT MATTER WITHIN 1 YEAR FROM THE DATE WHEN CUSTOMER KNEW, OR SHOULD HAVE KNOWN AFTER REASONABLE
INVESTIGATION, OF THE FACTS GIVING RISE TO THE CLAIM(S).
15.5. Amendments; Waivers. Unless expressly stated otherwise in this Agreement, no supplement, modification, or amendment of thisAgreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No
waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective
unless in writing signed by a duly authorized representative on behalf of the party claimed to have waived. Where this Agreement
provides for a specific remedy to be provided by Flexera, such remedy will be the sole and exclusive remedy for Customer. No
provision of any purchase order or other business form employed by Customer will add to or supersede the terms and conditionsof this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have nolegal effect.
15.6. Construction and Interpretation. The original of this Agreement has been written in English. Customer waives any rights it may
have under the law of its country to have this Agreement written in the language of that country. The use of the terms “including,”“include” or “includes” will in all cases herein mean “including without limitation,” “include without limitation” or “includes
without limitation,” respectively. Unless the context otherwise requires, words importing the singular include the plural andwords importing the masculine include the feminine and vice versa. This Agreement will be equally and fairly construed without
reference to the identity of the party preparing this document as the parties have agreed that each participated equally innegotiating and preparing this Agreement or have had equal opportunity to do so. To the maximum extent permitted byapplicable law, the parties waive the benefit of any statute, law, or rule providing that in cases of uncertainty, contract language
should be interpreted most strongly against the party who caused the uncertainty to exist. The headings and titles to the articles
and sections of this Agreement are inserted for convenience only and will not be deemed a part of or affect the construction orinterpretation of any provision of this Agreement.
15.7. Usage Information. Flexera may collect and use information related to Customer’s use of and output from the Products, andCustomer hereby consents to Flexera’s collection and use of such information (i) for improvement and development of Flexera’s
products and services, (ii) to provide Customer with visibility to Customer’s actual usage and consumption patterns, (iii) to makerecommendations to Customer regarding improvements to Customer’s environment and utilization of elements therein; (iv) inconnection with predictive analytics, benchmarking and usage intelligence; (v) to optimize Customer’s future planning activities
and requirements and (vi) in Flexera’s marketing efforts to describe how and to what extent Flexera’s customers generally use
Products and the information gained therefrom. Any information disseminated by Flexera hereunder will be anonymized andaggregated such that Customer could not be identified as the source of the information.
15.8. Independent Contractors. The parties are independent contractors. There is no relationship of partnership, joint venture,
employment, franchise, or agency created hereby between the parties. Customer acknowledges and agrees that the Products
may provide results and conclusions based on facts, assumptions, data, material, and other information that Flexera has notindependently investigated or verified. Inaccuracy or incompleteness of such facts, assumptions, data, material, and otherinformation could have a material effect on conclusions reached by the Products; all actions taken or not taken by Customer
based on the output of the Products are the responsibility of Customer. Neither party will have the power to bind the other orincur obligations on the other party’s behalf without the other party’s prior written consent.
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15.9. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement(except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party andcould not be avoided through the exercise of reasonable care and diligence, including but not limited to a Force Majeure Event.
If a Force Majeure Event occurs and continues for a period of thirty (30) days, Customer may terminate this Agreement by
providing written notice to Flexera. In the event Flexera’s performance hereunder is the subject of a Force Majeure Event, thefees to be paid by Customer will be equitably adjusted to reflect the period of non-performance.
15.10. Export Compliance. Each party will comply with all applicable export laws and regulations of the United States and any othercountry with jurisdiction over the Products and/or either party.
15.11. Notices and Reports. Any notice or report to be given under this Agreement, must be in writing for the attention of Legal Dept.
to the address given in the preamble to this Agreement, by the following methods only and will be deemed to have been validly
given (a) on the date of delivery if delivered by hand; (b) upon transmission if delivered by email to Flexera at legal@flexera.com
and to Customer at the email address on file; and (c) two (2) Business Days after posting with an internationally recognizedovernight courier. Where any provision of this Agreement requires Customer to object in writing, such objection must be basedon Customer’s reasonable opinion that Flexera (or its Subcontractor) would be incapable of meeting the requirements of thisAgreement. Each party to this Agreement may change its location for notice under this Agreement by giving notice to the otherparty in accordance with the notice provisions contained in this Section.
15.12. Diversity. Flexera is committed to encouraging the utilization of products and services provided by Diverse Suppliers. Flexera willuse commercially reasonable efforts to engage Diverse Suppliers in the support of its business. Flexera will maintain accurate andcomplete records relating to its Diverse Supplier obligations.
15.13. Insurance. Flexera is responsible for maintaining insurance to protect itself from the following: (a) claims and/or workers
compensation or state disability acts; (b) claims for damages because of bodily injury, sickness, or death of any of its employees
or any other person which arise out of any negligent act or omission of Flexera, its employees or agents, if any; (c) claims fordamages because of injury to or destruction of tangible property, including loss of use resulting therefrom, which arise from any
negligent act or omission of Flexera, its employees or agents, if any; and (d) claims for damages because of Flexera’s professional
liability. Flexera will maintain insurance with the following limits for the duration of this Agreement:• Workers Compensation Insurance in compliance with applicable Federal and State laws and Employer’s Liability coveragewith a minimum $1,000,000 limit of liability.
• Commercial General Liability Insurance with $1,000,000 bodily injury and property damage combined single limit ofcoverage,• Automobile bodily injury and property damage liability insurance covering owned, non-owned and hired automobiles, thelimits of which will not be less than $1,000,000 combined single limit per occurrence.
• Professional Liability insurance covering acts, errors, mistakes, omissions arising out of the work or services performed by
Flexera, or any Subcontractor, agent or person employed by Flexera, with a limit of not less than $1,000,000 per claim.
• Cyber Insurance with a policy limit of $10,000,000.
Upon Customer’s request, Flexera will provide Customer with a certificate of insurance completed by its insurance carrier
certifying that minimum insurance coverage as required above are in effect.
15.14. Anti-Bribery. Each party represents and warrants that (i) in connection with this Agreement, it has not and will not make any
payments or gifts or any offers or promises of payments or gifts of any kind, directly or indirectly, to any official of any government
or any agency or instrumentality thereof and (ii) it will comply in all respects with the Foreign Corrupt Practices Act, UK Bribery
Act 2010, or any similar local laws.
15.15. Equal Opportunity. Flexera agrees that it does not and will not discriminate against any employee or applicant for employment
because of race, color, religion, age, sex, disability, national origin, or sexual orientation.
15.16. Customer Contact Information. Customer is responsible for ensuring that Flexera has at all times updated and accurate Customer
contact information for Flexera to notify Customer regarding any security and products related issues. Customer shall provide
Customer current contact information via the Flexera support portal.
15.17. Execution. This Agreement may be executed in any number of counterparts, each of which will be an original and all of which will
constitute together but one document. In addition, the parties consent to the use of a third-party service for electronically
executing this Agreement.
15.18. Order of Precedence. In the event of a conflict between the terms of this Agreement and an Order, the terms of the Order willtake precedence with respect to the subject matter of such Order.
15.19. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties andsupersedes and cancels all previous written and oral agreements and communications relating to the subject matter of thisAgreement. As of the Effective Date, the following Schedule applies to this Agreement:• Schedule 1 – Information Security

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Governing Law, and Venue of Disputes
In accordance with and subject to Section 15.4 “Governing Law” of the Agreement, the following table sets forth the Governing Law that
corresponds with the location of the Customer entity executing this Agreement:

Flexera entity

Customer Location

Governing Law

Flexera Software GmbH, having its registered office atRegus Hamburg Altona, Hahnenkamp 1, 22765
Hamburg, Germany (company number HRB 205690).

Germany, Austria and Switzerland (DACH region)

EnglishFlexera Software Limited, a private company limitedby shares and incorporated in England and Wales withcompany number 6524874, having its principal officelocated at Level 2 401 Faraday Street, Birchwood Park,
Warrington, Cheshire, WA3 6GA, United Kingdom.

EMEA (except for DACH region) and India

EnglishFlexera Software Pty Limited, ABN 40 052 412 156,
having its principal place of business located at 990
Whitehorse Road, Level 4, Box Hill, VIC 3128, Australia.

Australia and New ZealandAustralian

Flexera Software Canada Corporation, having its
principal place of business at 1000 Innovation Drive,
Suite 513, Kanata, ON, K2K 3E7, Canada.

CanadaUSA, State of Illinois

Snow Software Assessoria E Representações LTDA,
having its registered office at Rua das Olimpíadas, 205,
4º andar, cj 41, Vila Olímpia | 04551-000 São Paulo/SP,
BrazilBrazilUSA, State of Illinois

Flexera Software LLC, a Delaware limited liability
company having its principal office located at 300 Park
Blvd., Suite 400, Itasca, IL 60143.

Countries outside of those listed above

USA, State of Illinois

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Schedule 1 – Information Security
1.

Standards Compliance. Flexera has and will maintain SOC2 certification throughout the subscription term of the Order and will andmake reports on the same available to the Customer upon request.

2.

Security Organization. Flexera has and will maintain an information security function, which has responsibility for ensuring good practicein relation to information security and in relation to the provision of the SaaS and Services, including the publication of information
security policies.

3.

Reporting and Incident Management.
a.
b.
c.
d.
e.
f.
g.

4.

Security Testing. Flexera has arranged for all testing as detailed in this Section below to be undertaken by an independent third party.
a.

b.
5.

b.
c.

Except as required by mandatory applicable law or by existing applicable contractual obligations, Flexera agrees that it will not
inform any third party of any Information Security Incident referencing, or identifying the Customer, without Customer’s priorwritten consent. Flexera will fully cooperate with Customer and law enforcement authorities concerning any unauthorized accessto Customer’s systems or networks, or data. Such co-operation will include the retention of all information and data within Flexera’s
possession, custody, or control that is directly related to any Information Security Incident.
If disclosure is required by law, Flexera will work with Customer regarding the timing, content, and recipients of such disclosure.
Flexera will respond promptly to any reasonable Customer requests for information, cooperation, and assistance, including to a
Customer designated response center.

Access Management.
a.
b.
c.

7.

Flexera, through its contractors, will perform penetration testing on the Flexera’s systems no more than once every twelve (12)months. If the penetration testing conducted discovers vulnerabilities in Flexera’s systems, Flexera will, to the extent that such
vulnerabilities result in an inability to materially comply with this Schedule, remediate such vulnerabilities and re-perform thepenetration testing focusing on those vulnerabilities discovered from the initial penetration testing. Upon receipt of a written
request, Flexera will make available the penetration testing executive summary report to Customer.
Flexera will, upon request, provide mutually agreed metrics at an agreed frequency to Customer to illustrate the performance ofthe testing schedule.

Security Communication and Assistance.
a.

6.

Flexera has implemented procedures for Information Security Incidents to be reported through appropriate management channels
as quickly as reasonably possible. All employees and representatives of Flexera or their sub-contractors will be made aware of their
responsibility to report Information Security Incidents as quickly as reasonably possible.
Flexera has and will maintain procedures to ensure a quick, effective, and orderly response to Information Security Incidents.
Flexera has and will maintain an incident classification scale in place to decide whether a security event should be classified as an
Information Security Incident. The classification scale will be based on the impact and extent of an incident.
Flexera will without undue delay (within 48 hours from confirmation) notify Customer of any Information Security Incidents.
Notifications to Customer will be sent to the email address on file.
If an Information Security Incident reveals any deficiencies, weaknesses, or areas of non-compliance, Flexera will promptly takesuch steps as may be required, in Flexera’s reasonable discretion, to address material deficiencies, weaknesses, and areas of noncompliance as soon as may be practicable given the circumstances.
Upon request, Flexera will keep Customer informed of the status of any remedial action that is required to be carried out, including
the estimated timetable for completing the same, and will certify to Customer as soon as may be practicable given thecircumstances that all necessary remedial actions have been completed.
For the purposes of this Section, “Information Security Incidents” will mean any unmitigated security incident, of which Flexera has
actual knowledge and which (i) compromises or is likely to compromise the security or integrity of Customer data or systems, or (ii)otherwise materially affects Flexera’s ability to comply with the obligations in this Schedule.

Where Flexera personnel are accessing Customer systems or data, Flexera is responsible for validating the identity of such
personnel.
Flexera will ensure that when accessing Customer systems or data, Flexera personnel have the minimal required system access tocarry out their duties and will not use shared accounts or password.
Flexera will ensure that access to the Customer systems or data is governed by this Schedule.

Security Review. Subject to the conditions set out herein, Flexera will permit Customer personnel or authorized representatives toreview and assess Flexera’s compliance with the obligations set out in this Section (“Security Review”). The definition of audit rights is
to be mutually agreed between Flexera and Customer. Unless otherwise required by law:10

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a.
b.
c.
d.
8.

Any Security Review is subject to not less than 28 days advance written notice and limited to no more than once in any 12-month
period;The Security Review will take place during normal business hours and should be conducted in a manner to minimize disruption to
Flexera’s business operations;Customer will bear its own costs in relation to a Security Review; andAny third party undertaking the Security Review must (i) be subject to confidentiality obligations no less protective than those set
out in the Agreement; and (ii) must not be a competitor of Flexera.

Business Continuity Management. Flexera has and will maintain a documented Business Continuity and Disaster Recovery Plan (“BC DR
Plan”) throughout the term of the Agreement which will be tested, the results of which will be shared with the Customer upon request.
Flexera has and will maintain emergency and contingency plans for the facilities that process Customer data.

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