PointGuard AI Cloud Services Agreement

4. Intellectual Property Ownership

PointGuardAI owns all rights, title and interest, including related intellectual property rights, in and to the Cloud Service, PointGuardAI IP, survey questions provided by PointGuardAI, and any related suggestions, enhancement requests, and feedback. Subject to the terms and conditions of this Agreement (including Customer’s obligation to pay all fees hereunder when due), Customer agrees that the PointGuardAI name and logo, and the Cloud Service-related product names are trademarks of PointGuardAI or its licensors. Subject to the following, no license to such marks is granted.

5. Support and Service Level Commitments

5.1 Support Services. Subject to payment of the corresponding fees, PointGuardAI will provide the Support Services specified in the applicable order and as further described in Exhibit A (Service Level Commitments and Support Services).

5.2 Service Level Commitments. The Service Level Commitments for the Cloud Service are as specified on Exhibit A, subject to the level subscribed to and paid for by the Customer under the applicable order. The sole and exclusive remedy for any breach of any Service Level Commitment is set forth in Exhibit A.

5.3 Neither the Support Services nor Service Level Commitments shall apply to Customer’s access and use of the Beta Software or evaluation in a non-production environment.

6. Professional Services

6.1 Grant of License.  Subject to Customer’s timely payment of applicable fees and the terms of this Agreement, Customer shall have a perpetual, non-exclusive, nontransferable, right and license to (unless otherwise set forth in a SOW) use, display and reproduce the Deliverables solely for its internal business purposes. Deliverables shall not be shared with any third party.

6.2 Intellectual  Property  Rights.  Customer  acknowledges  that  PointGuardAI  may  use  PointGuardAI  IP  to  provide  the Professional Services, and that Customer may obtain access to certain PointGuardAI IP as a result of PointGuardAI’s performance of its obligations under this Agreement.   PointGuardAI IP is and shall remain the sole and exclusive property of PointGuardAI and PointGuardAI shall retain all right, title and interest in and to the PointGuardAI IP and all derivative works thereof.

6.3 Restrictions. Customer agrees not to reproduce or modify any portion of the PointGuardAI IP, and will not disclose, sell, sublicense or otherwise transfer or make available all or any portion of the PointGuardAI IP to any third party without the prior written consent of PointGuardAI. Nothing contained in this Agreement shall directly or indirectly be construed to assign or grant to Customer any right, title or interest in or to the trademarks, copyrights, patents or trade secrets of PointGuardAI or any ownership rights in or to the PointGuardAI IP.   Customer shall not cause or permit the reverse engineering, reverse assembly, or reverse compilation of, or otherwise attempt to derive source code from, the PointGuardAI IP. Customer shall not create derivative works based upon all o r part of the PointGuardAI IP.  Customer shall not resell, redistribute or make available PointGuardAI IP or the Professional Services to any third party, and shall not use the PointGuardAI IP, Professional Services or the Deliverables to provide services to any third party.

6.4 Customer-Owned Property.  Customer will be and remain, at all times, the sole and exclusive owner of the Customer- Owned Property (including, without limitation, any modification, compilation, derivative work of, and all intellectual property and proprietary rights contained in or pertaining thereto). Customer hereby grants to PointGuardAI a perpetual, non-exclusive, non-transferable, right and license under Customer’s intellectual property rights in the Customer-Owned Property necessary for PointGuardAI to use, make, copy, modify, and create derivative works of the Customer-Owned Property for the limited purpose of developing and testing the Deliverables. PointGuardAI will promptly return to Customer all Customer-Owned Property upon the termination or expiration of this Agreement, or sooner at Customer’s request.

6.5 Customer Responsibilities.  In connection with each SOW, Customer acknowledges that Customer’s timely provision of (and   PointGuardAI’s access to) Customer’s facilities, equipment, assistance, cooperation, data, information and materials from Customer’s officers, agents and employees (“Cooperation”) is essential to the performance of the   Professional Services, and that PointGuardAI shall not be liable for any deficiency in performing the Professional Services if such deficiency results from Customer’s failure to provide full Cooperation as required hereunder. Cooperation includes, but it not limited to: (i) designating a project manager or technical lead to interface with PointGuardAI during the course of the Professional Services; (ii) allocating and engaging additional resources as may be required to assist PointGuardAI in performing the Professional Services; and (iii) making available to PointGuardAI any data, information and any other materials required by PointGuardAI to perform the Support Services, including, but not limited to, any data, information or materials specifically identified in the SOW (collectively, “Customer Materials”).   Customer will be responsible for ensuring that all such Customer Materials are accurate and complete.

6.6 Competitive Materials.    This  Agreement shall  not  preclude  PointGuardAI from  developing  materials  outside  of  this Agreement which are competitive, irrespective of their similarity, to materials which might be delivered to Customer pursuant to this Agreement.  Nothing in this Agreement shall be construed as precluding or limiting in any way the right of PointGuardAI to provide consulting, development, or other services of any kind or nature whatsoever to any individual or entity as PointGuardAI in its sole discretion deems appropriate.

6.7 Modified Orders.  Customer may from time to time desire to modify an SOW. In such a case, PointGuardAI will prepare an addendum to the SOW or prepare a new SOW which shall be signed by the parties and added to this Agreement.

7. Fees and Payments

7.1 Fees. Customer agrees to pay all fees set forth on all Order Forms under this Agreement. In the event that the parties mutually agree in writing to any extension of a Subscription Period or the provisioning of an upgrade, Customer will pay PointGuardAI the then-current list price for such extension or upgrade, unless otherwise set forth in the applicable Order Form. Subject to any credits applicable  to  any  Service  Level  Commitments  hereunder,  if  any,  or  as  otherwise  set  forth  in  this  Agreement,  all  fees  are nonrefundable. Unless otherwise specified in an Order Form, all fees and other amounts are payable in United States Dollars.

7.2 Invoicing and Payment Terms. Unless otherwise specified in the applicable Order Form, Customer will pay all fees within thirty (30) days of the date of the applicable invoice issued by PointGuardAI. In the event Customer disputes any invoiced fees, Customer will provide written notice of the disputed amount within fifteen (15) days after receiving such invoice and timely pay any undisputed portion of such invoice. The parties will cooperate in good faith to resolve any disputed invoice or portion thereof within fifteen (15) days of notice of dispute. All amounts payable by Customer under this Agreement will be made without setoff and without any deduction or withholding. Customer will promptly reimburse PointGuardAI for any cost or expense incurred in connection with any collection efforts undertaken by PointGuardAI in connection with any past due amount owed under this Agreement. Any payment not received from Customer by the due date may accrue (except for amounts then under reasonable and good faith dispute) inter est at the rate of one and one half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

7.3 Taxes. Fees are exclusive of Taxes and, Customer will promptly pay or reimburse PointGuardAI for all Taxes arising out of this Agreement. For purposes of this Agreement, “Taxes” means any sales, use and other taxes (other than taxes on PointGuardAI’s income), export and import fees, customs duties and similar charges applicable to the transactions contemplated by this Agreement that are imposed by any government or other authority. If Customer is legally entitled to an exemption from the payment of any Taxes, Customer will promptly provide PointGuardAI with legally sufficient tax exemption certificates for each taxing jurisdiction for which it claims exemption. Unless otherwise prohibited by law, PointGuardAI will apply the benefits of any requested tax exemption to charges occurring under Customer’s Account after the date PointGuardAI receives and reasonably processes such tax exemption certificates.

7.4 Professional Services.   Unless otherwise agreed in an Order Form, Customer agrees to pay PointGuardAI’s then-current hourly rates for Professional Services. The Professional Services must be used within twelve (12) months of the Effective Date of the applicable SOW or they will be forfeited, notwithstanding any shorter period referenced in such SOW.  Unless otherwise specified in the SOW, PointGuardAI shall invoice Customer for Professional Services set forth in any SOW on either: (i) a time and materials basis based on PointGuardAI’s actual hours worked; or (ii) a fixed price as set forth in an applicable SOW. One day of Professional  Service equals eight (8) man hours. Each invoice shall indicate the nature of the work performed and any reasonable expenses incurred by PointGuardAI with appropriate receipts and/or documentation, as well as the total amount due.  Customer shall reimburse PointGuardAI for any and all expenses that fall within one or more of the expense categories set forth in a SOW so long as such expenses are attributable to Professional Services performed under this Agreement.

7.5 Purchases Through Authorized Resellers. The terms of this Agreement related to pricing, payment and taxes do not apply to any Customer orders placed through Authorized Resellers where Customer pays the applicable fees directly to such Authorized Reseller. Customer will establish such terms independently with the Authorized Reseller.

8. Term and Termination

8.1 Term of Agreement and Term of Order Form. This Agreement will commence on the Agreement Effective Date and will remain in effect for as long as there is an Order Form in effect, unless otherwise terminated as provided for in Section 8.3 herein below. Each Order Form placed under this Agreement will be in effect for a period of one (1) year from the Order Form Effective Date unless otherwise agreed in writing by the parties.

8.2 Order Form Renewal. Unless the Agreement is terminated as provided for herein, the Order Form(s) under this Agreement will automatically renew for the same period of time as the Subscription Period of the prior Order Form subject to payment of the corresponding fees, with either party having the ability to provide the other party with its intent not to renew the applicable Order Form(s) with at least thirty (30) days written notice prior to the end of the then-current Subscription Period of such Order Form(s).

8.3 Termination for Material Breach.  Either party may terminate this Agreement, any Order Form, or any SOW upon written notice of a material breach of the applicable Agreement, Order Form or SOW by the other party as provided below, subject to a thirty (30) day cure period (“Cure Period”).  If the breaching party has failed to cure the breach within the Cure Period after the receipt by the breaching party of written notice of such breach, the non-breaching party may give a second notice to the breaching party terminating the applicable Agreement, Order Form or SOW.  Termination of any particular Order Form or SO W under this Section will not be deemed a termination of this Agreement or any other Order Form or SOW, unless the notice of termination states that this Agreement or another Order Form or SOW is also terminated.  Notwithstanding the foregoing, the Cure Period applicable to a breach by Customer of any payment obligations under this Agreement, any Order Form or any SOW will be fifteen (15) days.

8.4 Statements of Work.  The term of each SOW will be as set forth in that SOW. If no term is expressed in a SOW, then the term of that SOW will begin on the effective date of that SOW (as defined in the SOW) and continue until the Professional Services described in that SOW are complete or the SOW is earlier terminated as set forth herein.

8.5 Termination for Bankruptcy or Insolvency.  If Customer: (i) terminates or suspends its business; (ii) becomes subject to any bankruptcy or insolvency proceedings under US federal or state statutes or any similar proceedings under the laws of other jurisdictions; (iii) becomes insolvent or subject to direct control by a trustee, receiver or similar authority; or (iv) dissolves or liquidates, voluntarily or otherwise, PointGuardAI may terminate this Agreement, any Order Form, and/or any SOW upon fifteen (15) days’ written notice.

8.6 Effect of Termination.  Termination or expiration of this Agreement will not be deemed a termination or expiration of any Order Forms or SOWs in effect as of the date of termination or expiration, and this Agreement will continue to govern and be effective as to those outstanding Order Forms and SOWs until those Order Forms and SOWs have expired or terminated by their own terms or as set forth herein.  When this Agreement and all Order Forms and SOWs have terminated or expired, then within thirty (30) days after the date when this Agreement and all Order Forms and SOWs have expired, each party will return to the other party or destroy all of such other party’s Confidential Information, at such other party’s discretion, and upon request provide such other party with an officer’s certificate attesting to such return and/or destruction, as appropriate.   Any unbilled amounts, including, but not limited to delayed invoicing, will continue to be due and payable as set forth herein.  Customer’s access to the Cloud Services will immediately terminate.

8.7 Survival of Terms.  Those provisions which by their nature are intended to survive the termination of this Agreement shall survive.

8.8 Post-Termination Obligations. Upon the termination or expiration of this Agreement for any reason Customer will have no further rights to the Cloud Service hereunder except as set forth in this Section 8.8. For thirty (30) days following the expiration or the termination of the Agreement and/or applicable Subscription Period, and subject to Customer’s prior written request, PointGuardAI will grant Customer’s Administrator limited access to the Cloud Service solely for purposes of Customer’s retrieval of the Customer Data. After such a thirty (30) day period, Customer will have no further rights to access the Cloud Service and PointGuardAI will have no obligation to maintain the Customer Data.

8.9 Suspension of Cloud Service. PointGuardAI may at any time suspend any User’s access and use of the Cloud Service and/or remove or disable any Customer Data as to which PointGuardAI reasonably and in good faith believes is in violation of this Agreement. PointGuardAI agrees to provide Customer with notice of any such suspension or disablement before its implementation unless such suspension or disablement is necessary to comply with legal process, regulation, order or prevent imminent harm to the Cloud Service or any third party, in which case PointGuardAI will notify Customer to the extent allowed by applicable law of such suspension or disablement as soon as reasonably practicable thereafter.

9. Representations and Warranties

9.1 Representations and Warranties. Each party represents and warrants that it has the power and authority to enter into this Agreement. Customer represents and warrants that, to the best of Customer’s knowledge and belief: (i) Customer Data does not and will not violate the terms or conditions of this Agreement, applicable law, or any third party’s privacy rights; and (ii) any and all contact information that it provides to PointGuardAI, including email addresses sent to or via the Cloud Service, will not include any inaccurate information. PointGuardAI warrants that the Cloud Service, when used in accordance with the instructions in the Documentation, will materially conform to the description in the Documentation. Customer will have thirty (30) days following the initial provision of any Cloud Service to notify PointGuardAI of a breach of the foregoing warranty, in which event, PointGuardAI’s entire liability and Customer’s sole and exclusive remedy will before PointGuardAI’s to   reperform, modify, or replace the Cloud Service so that it so conforms to such warranty. Any remedy provided by PointGuardAI will not extend the original warranty period. PointGuardAI will have no obligation under this Agreement to correct, and PointGuardAI makes no warranty with respect to, errors caused by or relating to: (a) use of the Cloud Service in a manner inconsistent with the Documentation or this Agreement; or (b) third party hardware or software misuse, modification, or malfunction.

9.2 Warranty Disclaimers. EXCEPT AS SET FORTH IN SECTION 9.1, ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, AND STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED BY EACH PARTY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. PointGuardAI’S CLOUD SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, PERSONAL COMPUTERS, AND ELECTRONIC COMMUNICATIONS. PointGuardAI IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. IN ADDITION, PointGuardAI RESERVES THE RIGHT TO UPGRADE, CHANGE, ADD, OR MODIFY THE CLOUD SERVICES AND/OR ANY TYPE OF SERVICES WITH OR WITHOUT NOTICE, AND WITHOUT PENALTY.

10. Indemnification

PointGuardAI will indemnify and hold Customer harmless from and against any and all third-party claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) to the extent arising out of or in connection with: (a) a claim alleging that the Cloud Service directly infringes or misappropriates a copyright, trademark, or trade secret of a third party; or (b) a claim arising from breach of this Agreement by PointGuardAI. PointGuardAI will have no indemnification obligation, and Customer will indemnify PointGuardAI pursuant to this Agreement, for claims arising from any infringement or misappropriation to the extent arising from: (i) Customer’s or any User’s use of the Cloud Service other than as permitted under this Agreement; (ii) the combination of the Cloud Service with any Customer Owned Property or any other Customer-supplied or utilized products, services, hardware, data, content, or business process(s); provided however, that for purposes of clarification, populating the Cloud Service with Customer Data will not be deemed a combination that terminates PointGuardAI’s indemnity obligation; or (iii) from the modification of the Cloud Service or any PointGuardAI IP by any party other than PointGuardAI or PointGuardAI’s agents. The foregoing is PointGuardAI’s sole and exclusive obligation for infringement claims. Customer will indemnify and hold PointGuardAI harmless from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) to the extent arising out of or in connection with: (A) a claim alleging that use of the Customer Materials infringe a copyright, trademark, or trade secret, privacy, or publicity rights of a third party; (B) a claim arising from the breach of this Agreement by Customer or Customer’s Users. Each party’s indemnification obligations are conditioned on the indemnified party: (1) promptly giving written notice of the claim to the indemnifying party; (2) giving the indemnifying party sole control of the defense and settlement of the claim (provided that the indemnifying party may not settle any claim unless the settlement unconditionally releases the indemnified party of all liability for the claim); (3) providing to the indemnifying party all available information and assistance in connection with the claim, at the indemnifying party’s request and expense; and (4) not compromising or settling such claim. The indemnified party may participate in the defense of the claim, at the indemnified party’s sole expense (not subject to reimbursement).

11. Limitation of Liability

EXCEPT FOR BREACH OF SECTION 2.2, 3, 4, 6.2, 6.3, 10: (A) NEITHER PARTY’S AGGREGATE LIABILITY WILL EXCEED THE AMOUNTS PAID OR PAYABLE IN THE TWELVE (12) MONTHS PRIOR TO THE CLAIM; AND (B) NEITHER PARTY NOR ITS LICENSORS WILL BE LIABLE FOR INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES, INCLUDING LOSS OF DATA, REVENUE, PROFITS, OR USE, HEREUNDER, OR FOR ANY CUSTOMER DATA OBTAINED FROM OR THROUGH THE CLOUD SERVICE, EVEN IF PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY ACKNOWLEDGES THAT ITS INDEMNIFICATION OBLIGATIONS ARE A DIRECT, RATHER THAN AN INDIRECT OBLIGATION OWED TO THE OTHER PARTY AND, ACCORDINGLY, THE FOREGOING DISCLAIMER WILL NOT BE CONSTRUED TO LIMIT EITHER PARTY’S OBLIGATION TO PAY AMOUNTS TO THIRD PARTIES PURSUANT TO SUCH PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER. CUSTOMER ACKNOWLEDGES AND AGREES THAT PointGuardAI’S LICENSORS WILL HAVE NO LIABILITY UNDER THIS AGREEMENT. CUSTOMER ACKNOWLEDGES THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 11 REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES UNDER THIS AGREEMENT, AND THAT IN THE ABSENCE OF SUCH LIMITATIONS OF LIABILITY, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SIGNIFICANTLY DIFFERENT.

12. Confidentiality

Recipient  may  use  Discloser’s Confidential Information solely to  perform Recipient’s obligations or exercise its rights hereunder. Recipient may not disclose, or permit to be disclosed, Discloser’s Confidential Information to any third party without Discloser’s prior written consent, except that Recipient may disclose Discloser’s Confidential Information solely to Recipient’s employees and/or subcontractors who have a need to know and who are bound in writing to keep such information confidential pursuant to written agreements consistent with this Agreement. Recipient will exercise due care in protecting Discloser’s Confidential Information from unauthorized use and disclosure, and will not use less than the degree of care a reasonable person would use. The foregoing will not apply to any information that: (i) is in the public domain through no fault of Recipient; (ii) was properly known to Recipient, without restriction, prior to disclosure by Discloser; (iii) was properly disclosed to Recipient, without restriction, by another person with the legal authority to do so; (iv) Recipient independently develops without use of Disclo ser’s Confidential Information; (v) is expressly permitted to be disclosed pursuant to the terms of this Agreement; or (iv) is required to be disclosed pursuant to a judicial or legislative order or proceeding; provided that Recipient provides to Discloser prior notice of the intended disclosure and an opportunity to respond or object thereto. If Directive 95/46/EC applies to any Personal Data (as defined in such Directive) processed by PointGuardAI hereunder, Customer represents and warrants that: (a) it has obtained or will obtain all consents necessary to transfer the Personal Data to PointGuardAI, as a data processor, in the U.S.; (b) the transfer of Personal Data to the U.S. does not violate applicable law or Customer’s privacy policy; (c) any instructions given by Customer to PointGuardAI for the processing of Personal Data do not violate applicable law or Customer’s privacy policy. Customer will be responsible for all inquiries and complaints regarding Personal Data from Data Subjects or Supervisory Authorities (as those defined by Directive 95/46/EC or applicable member state law implementing that Directive).

13. Export Control

Customer represents and warrants that it shall comply with all laws and regulations applicable to Customer with respect to the license and use of the Software.  Customer further acknowledges and agrees that the Software licensed under this Agreement may be subject to restrictions and controls imposed by the United States Export Administration Act and the regulations thereunder. Customer agrees to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State.  Specifically, Customer covenants that it shall not, directly or indirectly, sell, export, reexport, transfer, divert, or otherwise dispose of any Software or technology (including products derived from or based on such technology) received from PointGuardAI under this Agreement to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. These prohibitions include, but are not limited to the following:  (i) the Software cannot be exported or re -exported to any countries embargoes by the United States (currently including Cuba, Iran, North Korea, Sudan or Syria) which includes nationals of these countries employed by Customer; (ii) the Software cannot be exported or re-exported for military use in country group ‘b’ prior to valid ‘export license’ or valid ‘license exception’; (iii) engineers cannot have access to PointGuardAI’s proprietary encryption source code; and (iv) the Software cannot be used for any prohibited end uses including any ‘nuclear, biological or chemical weapon related activities’.  Customer agrees to notify PointGuardAI of any suspicious activities by any employee related to the Software.  Customer agrees to indemnify, to the fullest extent permitted by law, PointGuardAI from and against any fines or penalties that may arise as a result of Customer’s breach of this provision. This export control clause shall survive termination or cancellation of this Agreement.

14. Anticorruption Laws

Customer acknowledges that it is familiar with and understands the provisions of the U.S. Foreign Corrupt Practices Act (the “FCPA") and the U.K. Bribery Act of 2010 (“UKBA”) and agrees to comply with its terms as well as any provisions of local law or PointGuardAI’s corporate policies and procedures related thereto. Customer further understands the provisions relating to the FCPA and UKBA’s prohibitions regarding the payment or giving of anything of value, including but not limited to payments, gifts, travel, entertainment and meals, either directly or indirectly, to an official of a foreign government or political party for the purpose of influencing an act or decision in his or her official capacity or inducing the official to use his or her party's influence with that government, to obtain or retain business involving the Cloud Services. Customer agrees to not violate or knowingly let anyone violate the FCPA or UKBA, and Customer agrees that no payment it makes will constitute a bribe, influence payment, kickback, rebate, or other payment that violates the FCPA, the UKBA, or any other applicable anti-corruption or anti-bribery law.

15. U.S. Government Restricted Rights

The  Software  and  Documentation  are  “commercial  items”,  “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable.  Any use, modification, reproduction, release, performance, display or disclosure of the Software and Documentation by the United States Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement. The Software was developed fully at private expense.

16. General

16.1 Independent Contractors. The parties are and at all times shall be and remain independent contractors as to each other, and at no time shall either party be deemed to be the agent or employee of the other.  No joint venture, partnership, agency, or other relationship shall be created or implied as a result of this Agreement. Furthermore, neither party shall have the authority to, and shall not purport to, enter into any contract or commitment on behalf of the other party.

16.2 Governing Law.  This Agreement, and any and all actions arising from or in any manner affecting the interpretation of this Agreement, shall be governed by, and construed solely in accordance with, the laws of the State of California, without giving effect to any conflicts of laws principles that would require the application of the laws of a different jurisdiction.  The parties consent to the exclusive jurisdiction and venue of the federal and state courts located in Santa Clara County, California for any action permitted under this Section, challenge to this Section, or judgment upon the award entered.  The United Nations Convention on Contracts for the International Sale of Goods and Uniform Computer Information Transactions Act (UCITA), or any similar federal laws or regulations enacted, to the extent allowed by law shall not apply to this Agreement.

16.3 Compliance.  The parties shall comply with all provisions of any applicable laws, regulations, rules, or orders relating to the rights granted herein and to the testing, production, transport, export, re-export, packaging, labeling, distribution, sale or other use of the Software, Cloud Services, Support Services, Professional Services or as otherwise applicable to a party’s activities hereunder.

16.4 Assignment. Customer may not assign this Agreement (whether expressly, by implication, or by operation of law, including in connection with any merger or sale of assets or business), or delegate its performance under this Agreement (either in whole or in part), to any third party without obtaining PointGuardAI’s prior written consent. PointGuardAI may assign this Agreement or any rights granted herein. Any purported transfer, assignment, or delegation in violation of this Section shall be null and void when attempted and of no force or effect.  Subject to the foregoing, this Agreement shall bind and inure to the benefit of the successors and permitted assigns of PointGuardAI and Customer.

16.5 Notices. All notices required to be sent hereunder shall be in writing, addressed to the receiving party’s current business contact, if known, with a cc: to the Legal Department of the receiving party, and sent to the party’s address as listed in this Agreement, or as updated by either party by written notice. Notices shall be effective upon receipt and shall be deemed to be received as follows: (i) if personally delivered by courier, when delivered; or (ii) if mailed by first class mail, or the local equivalent, on the fifth business day after posting with the proper address.

16.6 Waivers; Amendment.  No waiver of any terms or conditions of this Agreement shall be valid or binding on a party unless such party makes the waiver in hardcopy writing signed by an authorized representative of that party.  The failure of one party to enforce any of the provisions of this Agreement, or the failure to require at any time the performance of the other party of any of the provisions of this Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of a party to enforce each and every provision thereafter.  This Agreement may not be altered, amended, modified, or otherwise changed in any way except by a hardcopy written instrument signed by the authorized representatives of each party.

16.7 Severability. If any provision of this Agreement is found or held to be invalid or unenforceable by any tribunal of competent jurisdiction, then the meaning of such provision shall be construed, to the extent feasible, so as to render the provision enforceable, and if no feasible interpretation would save such provision, it shall be severed from the remainder of this Agreement, which shall remain in full force and effect.

16.8 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 unforeseen events, which occur after the signing of this Agreement and which are beyond the reasonable control of the parties, such as strikes, blockade, war, terrorism, riots, natural disasters, refusal of license by the government or other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure at reasonable cost.

16.9 Headings; Language.  All headings used herein are for convenience of reference only and will they in any way affect the interpretation hereof. The English language version of this Agreement controls.  This Agreement, and any associated documentation, shall be written and signed in English.

16.10 Entire Agreement.  This Agreement (including any software license agreements, exhibits, accepted purchase orders and any amendments hereto) contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous or contemporaneous communications, representations, proposals, commitments, understandings and agreements, whether written or oral, between the parties regarding the subject matter hereof.  PointGuardAI does not accept, expressly or impliedly and PointGuardAI hereby rejects and deems deleted any additional or different terms or conditions that Customer presents, including, but not limited to, any terms or conditions contained or referenced in any order, acceptance, acknowledgement, or other document, or established by trade usage or prior course of dealing.

16.11 Third Party Rights.  Other than as expressly set out in this Agreement, this Agreement does not create any rights for any person who is not a party to it and no person who is not a party to this Agreement may enforce any of its terms or rely on any exclusion or limitation contained in it.

16.12 Retention and Audits.  Customer will maintain complete and accurate records of its access and use of the Cloud Services provided under this Agreement for a period of 7 years after the completion of these Cloud Services or delivery and/or performance of any Deliverables. Records relating to the performance of this Agreement including but not limited to the Export and the Anti­-Corruption sections will be made available to PointGuardAI upon reasonable notice.

2. Support Service Tiers

2.1 Premium. Premium Support Services shall include:

∙ Access to and delivery of PointGuardAI Support Services 24 hours a day 7 days a week until Error is resolved.

∙ Unlimited number of Incident Report submissions.

∙ Customer portal access for additional Error reporting and follow up of any Severity Level.

2.2  Standard. Standard Support Services shall include:

∙ Access to and delivery of PointGuardAI Support Services from 7 AM to 5 PM PST until Error is resolved.

∙ Unlimited number of Incident Report submissions.

3. Severity Levels

Incident Reports for all Severity Level 1 and 2 Errors must be reported by phone. Incident Reports for

Severity Level 3 and 4 Errors may be reported by phone or by email or via Customer Portal. PointGuardAI will exercise commercially reasonable efforts to correct any Error submitted by Customer in an Incident Report in accordance with the following Severity Level definitions:

SEVERITY LEVEL 1

An  Error  causing  a  critical business impact to Customer due to a complete loss of service in a production environment.

‍Standard Response Time: 1 Business Day

‍Premium Response Time: 4 hours

Resolution Commitment: PointGuardAI will commit Level Two/Three resources to resolve. Customer shall commit the full-time resources during the hours of coverage to resolve the Error.

SEVERITY LEVEL 2

An  Error  causing  a  serious business impact to Customer due to a significant loss of service in a production environment.

‍Standard Response Time: 2 Business Days

‍Premium Response Time: 24 hours

Resolution Commitment: PointGuardAI will commit Level Two/Three resources to resolve. Customer  shall  commit  the necessary  resources  during  the hours of coverage to resolve the Error.

SEVERITY LEVEL 3

An Error causing a minor business impact to Customer due to a minor loss of service in a production environment.

‍Standard Response Time: 4 Business Days

‍Premium Response Time: 2 Business Days

Resolution Commitment: PointGuardAI will commit Level One (and Level Two/Three as determined by PointGuardAI) resources to resolve.

SEVERITY LEVEL 4

An Error causing no, or insignificant,  work impediment to Customer, such as information request or report.

‍Standard Response Time: 10 Business Days

‍Premium Response Time: 5 Business Days

4. Customer Obligation

To enable identification and correction of Errors, Customer is required to assist PointGuardAI technical support staff until the Error is resolved. Required Customer activities may include, but are not limited to, the following: (i) logging into Customer’s instance for diagnosis of problems; (ii) downloading and installing of Revisions

5. Escalation

5.1 Status Updates. Each Customer support contact shall establish a schedule of follow-up, status updated communications with their PointGuardAI counterpart that shall ensure timely exchange of information.

5.2 Monitor Phase.  The purpose of the monitor phase is to evaluate the Customer’s environment over some period of time to verify that the Escalation has been resolved. Both parties shall coordinate monitoring activities and mutually agree to close the monitor phase when it is clear the problem requiring Escalation is resolved.

5.3 Closing Escalation.  When both parties agree that the issue necessitating Escalation is resolved, the Escalation is closed. Each designated contact shall exchange final reports with their counterpart summarizing the Customer issues, actions taken, results of those actions, likelihood of issue recurrence, and recommended future actions.

6. Service Availability

PointGuardAI’s  Service  Availability  commitment  for  a  given  calendar  month  is  99%  Service Availability is calculated per month as follows:

(Total – Unplanned Outage – Planned Maintenance/Total – Planned Maintenance) * 100 >/ 99% Definitions:

∙Total is the total minutes in the month

∙Unplanned Outage is total minutes unavailable in the month outside of the Planned Maintenance window

∙Planned Maintenance is total minutes of planned maintenance in the month.

∙An Unplanned Outage occurs only if it affects the data protection and remediation features of the Cloud Service.

6.1 PointGuardAI Planned Maintenance. Periodically, PointGuardAI will need to perform planned maintenance that will require the Cloud Service to be taken down for up to 60 minutes (which time shall not be considered an Unplanned Outage). Specific information and timelines for Service Updates will be published by PointGuardAI.

6.2  PointGuardAI Feature Releases. Periodically, PointGuardAI introduces new features in Cloud with enhanced functionality. Features and functionality will be made available as part of a major feature release ("Feature Release") or as part of regular planned maintenance. Feature Releases may take up to twelve (12) hours to update and will require the Cloud Service to be taken down for some or all of that time (which time shall not be considered an Unplanned Outage). Specific information and timelines for Feature Releases will be published by PointGuardAI.

7. Data Retention

Except as set forth in Section 8.8 of the Agreement, PointGuardAI will maintain the Customer Data for twelve (12)  months after submission by  Customer, respectively, for access by  Customer. Thereafter, PointGuardAI, in  its sole discretion, may continue to maintain or archive or delete the Customer Data.