Vort Master Software and Services Agreement

PLEASE READ THIS MASTER SOFTWARE AND SERVICES AGREEMENT (THIS “AGREEMENT”) CAREFULLY. YOU MUST REVIEW AND ACCEPT OR REJECT THE TERMS OF THIS AGREEMENT BEFORE DOWNLOADING, INSTALLING, ACCESSING OR USING ANY OF THE PRODUCTS. BY CLICKING THE “I AGREE” BUTTON, DOWNLOADING, INSTALLING OR OTHERWISE ACCESSING OR USING ANY PRODUCT, YOU ACKNOWLEDGE THAT YOU HAVE READ ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, UNDERSTAND THEM, AND AGREE TO BE LEGALLY BOUND BY THEM. THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND THE ENTITY ON WHOSE BEHALF THE PRODUCT IS USED (FOR EXAMPLE, IF APPLICABLE, YOUR EMPLOYER). If Customer downloads the Software as an update to an existing Vort Software product, Customer agrees that the terms of this Agreement will apply to such Software product, as updated, and that these will be the only terms and conditions applicable to such updated Software. Vort may update the terms of this Agreement at any time in its sole discretion. Vort will notify Customer of any material updates, and Customer’s continued use of the Software following such notice will constitute Customer’s acceptance of the updated terms. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT, DO NOT CLICK THE “I AGREE” BUTTON, AND DO NOT DOWNLOAD, INSTALL, ACCESS OR USE ANY PRODUCT.

This Agreement is entered into by and between Vort Corporation, a Delaware corporation (“Vort”), and the entity on whose behalf the applicable Product is used (“Customer”) (each a “Party” and together the “Parties”). This Agreement, together with any documents incorporated herein by reference, sets forth all terms and conditions applicable to use of the Products by Customer.

DEFINITIONS. All capitalized terms used herein will have the definitions ascribed to them in this section or elsewhere in this Agreement.

• “Affiliate” means an entity controlled by, under common control with, or controlling a Party, where “control” means an ownership interest of greater than fifty percent.
• “Cloud Service” means any proprietary Vort software made available for access as a hosted software-as-a-service (SaaS) offering.
• “Software” refers to Vort’s proprietary licensed computer software programs that are downloaded and/or installed. The term Software includes Trial Software, Subscription Software and Perpetual Software.
• “Beta Software” means a version of the Software prior to a generally available commercial release that Vort makes available to Customer for the purpose of Vort’s development and testing prior to a generally available commercial release.
• “Trial Software” means Software downloaded for temporary evaluation purposes. The term “Trial Software” includes Beta Software.
• “Subscription Software” means Software licensed with time limits, other than Trial Software, pursuant to an Order.
• “Subscription Term” means (i) the period of time during which Vort commits to provide Customer with access to the Cloud Services, or (ii) the period of time during which Vort will grant Customer a license to the Subscription Software, or (iii) the period of time during which Vort will give Customer access to Support Services for Perpetual Software, as such period of time is set forth in the applicable Order.
• “Perpetual Software” means software licensed without time limits pursuant to an Order.
• “Products” means the Cloud Services and Software identified in the applicable Order, provided pursuant to this Agreement and the Documentation.
• “Documentation” means the technical documentation provided with the Products, or otherwise made available to Customer by Vort at www.Vort.com/documentation.html, excluding links to any information or data at a different URL.
• “Services” refers to the Support Services and Professional Services.
• “Support Services” means any remote maintenance and support services for Products provided to Customer pursuant to an Order.
• “Professional Services” refers to any remote or on-site services, other than Support Services, provided to Customer pursuant to an Order, including, without limitation, deployment, configurations, integrations and customizations.
• “Quote” means any quote issued by Vort for Software or Services.
• “Order” means any order for Products or Services, including a signed Quote or other document consistent with a Quote, or as otherwise indicated in this Agreement.

1. ORDERS.

1.1 Orders. From time to time, Customer may submit Orders directly to Vort or indirectly through an authorized Vort reseller or distributor (each a “Partner”), each of which (a) references and is governed by this Agreement, (b) sets forth the Products and Services Customer will order and Vort will provide, (c) the related Subscription Term(s) for such Products and Services, and (d) all associated fees that Customer or the Partner will pay to Vort therefor. Where an Order is submitted by a Partner, Customer will have a separate agreement with the Partner regarding Customer’s payment obligations to the Partner, and the Partner will have a separate agreement with Vort regarding the Partner’s payment obligations to Vort (but this Agreement will apply to and govern Customer’s use and receipt of Products and Services).

1.2 Products. During the applicable subscription term, Vort will make available to Customer the Products and Services identified in the applicable Order. With respect to any Product that is Software, Vort hereby grants Customer a limited, non-exclusive, non-transferable and non-sublicensable right, during the applicable subscription term, to install and use the applicable Software solely for Customer’s internal business purposes. With respect to any Product that is a Cloud Service, Vort hereby grants Customer a limited, non-exclusive, non-transferable and non-sublicensable right, during the applicable subscription term, to access and use the applicable Cloud Service solely for Customer’s internal business purposes.

1.3 Restrictions. Customer will not provide access to any Product or Services to any person who is not an employee or contractor of Customer (“Authorized Users”). Customer will be responsible and liable for all Authorized Users’ compliance with the terms and conditions of this Agreement. Except as expressly permitted hereunder, neither Customer nor any Authorized User will, or will permit or authorize any third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of any Product; (b) modify, translate or create derivative works based on any Product; (c) copy, rent, lease, distribute, pledge, assign or otherwise transfer or allow any lien, security interest or other encumbrance on any Product; (d) use any Product for timesharing or service bureau purposes or otherwise for the benefit of a third party; (e) hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to any Product or their related systems, hardware or networks or any content or technology incorporated in any of the foregoing; or (f) remove or obscure any proprietary notices or labels of Vort or its suppliers on any Product. Customer will (i) use commercially reasonable efforts to prevent unauthorized access to or use of any Product and notify Vort promptly of any such unauthorized access or use, and (ii) use each Product only in accordance with the documentation provided by Vort and all applicable laws, rules and regulations.

1.4 Uptime for Cloud Services. With respect to any Product that is a Cloud Service, Vort will use commercially reasonable efforts consistent with prevailing industry standards to provide the Cloud Service in a manner that minimizes errors and interruptions in access to the Cloud Service. Without limiting the foregoing, Vort will use commercially reasonable efforts to provide up-to-date uptime information for the Cloud Services at https://status.Vort.com.

1.5 Data Security Posture Management. With respect to any Product that is a Cloud Service, Vort has implemented administrative, technical and physical safeguards to protect the security, confidentiality and integrity of Customer Data in the Cloud Service as set forth in the applicable Documentation. Vort may modify the Cloud Service from time to time, in its discretion, without notice to Customer, for the purpose of improving the features, functions or performance of the Cloud Service, provided that such modification does not materially reduce the level or quality of the Cloud Service as offered as of the date Vort established Customer’s account for access to the Cloud Service. Notwithstanding the foregoing, Vort may make any improvements and modifications to the Cloud Service required to maintain Vort’s legal and regulatory requirements and security standards, provided that such improvements and modifications do not materially reduce security and privacy safeguards. It is Customer’s sole responsibility to maintain the security of Customer’s computer systems and to comply with any industry-standard minimum security requirements to access the Cloud Service.

2. SERVICES.

2.1 Support Services. The Support Services offered by Vort are described in the Vort Customer Support Program Guide, which Vort may update from time to time, available at https://www.Vort.com/download/documents/Netwrix_Customer_Support_Program_Guide.pdf . Support Services include access to request support via the web or by telephone for the Products identified in an Order, and, with respect to any Product that is Software, to download new versions and releases of the Software, including Software fixes, enhancements and updates, if and when Vort makes them generally available at no charge to licensees of the Software. Customer is responsible for designating individual(s) generally trained in the use of computers to request support from Vort. Except with respect to Products that are Perpetual Software, Vort will make available to Customer the Support Services identified in an Order during the applicable subscription term (the “Support Services Term”); provided that Vort may suspend access to or deny Support Services if it has not received the applicable fees. Support Services for Products that are Perpetual Software must be purchased separately.

2.2 Professional Services. From time to time, Customer may engage Vort to perform professional services related to Customer’s use of the Products, whether on a fixed-price or time-and-materials basis (the “Professional Services”). The Professional Services offered by Vort are described in the Vort Professional Services Program Guide, which Vort may update from time to time, available at https://www.Vort.com/download/documents/Netwrix_Professional_Services_Program_Guide.pdf .

2.2.1 Statements of Work. Professional Services may be set forth in a statement of work. Any statement of work will expressly incorporate this Agreement by reference and is governed by this Agreement when signed by an authorized representative of each Party (each, a “SOW”). Each SOW will include a description of the Professional Services and related activities or deliverables (as applicable), and the fees that Customer or Partner (as applicable) will pay to Vort in connection therewith.

2.2.2 Vort’s Obligations. Vort will (a) use commercially reasonable efforts to perform and complete the Professional Services in accordance with this Agreement and the applicable SOW, and (b) provide suitably trained and qualified personnel to perform the Professional Services. Except as set forth in a SOW, Professional Services will be provided remotely.

2.2.3 Customer’s Obligations. Customer understands that Vort’s performance of the Professional Services depends in part on Customer’s actions. Accordingly, Customer will provide Vort with any items and assistance necessary in a timely manner, including the items and assistance identified in the applicable SOW. Any date or time period relevant to Vort’s performance under any SOW will be extended appropriately and equitably to compensate for any delay attributable to Customer.

2.2.4 Professional Services Term. Vort will begin and complete the Professional Services within the timeframe set forth in the applicable Order and/or SOW or, if no timeframe is stated in an Order or SOW or otherwise, within a reasonable time considering the complexity and circumstances of the Professional Services (“Professional Services Term”). During the Professional Services Term, Customer will make diligent efforts to schedule and complete the Professional Services, including, without limitation, having appropriate personnel, equipment and environment available in a timely manner.

2.2.5 Completion. The Professional Services will be deemed fully delivered and completed upon the earliest to occur of: (i) the time allotted in the applicable Order and/or SOW has expired, (ii) Customer’s sign-off acknowledging completion of the Professional Services, or (iii) two email attempts by Vort to contact Customer following completion of the Professional Services to which Customer has not responded. Notwithstanding the foregoing, the right to use the Professional Services will expire ninety (90) calendar days after purchase of the Professional Services unless otherwise stated in the applicable Order or SOW.

2.2.6 On-Site Professional Services. If any SOW describes Professional Services required to be performed at Customer’s premises, Vort will comply with any of Customer’s site rules or regulations in effect at the time of Vort’s performance of the Professional Services that are made available by Customer to Vort.

2.2.7 Subcontractors. Vort may engage subcontractors to perform the Professional Services; provided that Vort will remain responsible and liable for such subcontractors’ compliance with the terms and conditions of this Agreement. This Agreement will not create any contractual relationship between Customer and Vort’s subcontractors, nor obligate Customer to pay or ensure payment to any subcontractor.

3. FEES; PAYMENT TERMS.

3.1 Fees. Customer or Partner (as applicable) will pay Vort the fees set forth in each Order and any SOW, in accordance with the terms and conditions set forth therein and herein. In its discretion, Vort may increase the price set forth in an Order for any Renewal Subscription Term.

3.2 Usage Verification. Customer’s use of each Product is limited to the number of licenses identified in the applicable Order(s). Where applicable, Customer acknowledges that the Products will transmit license usage data to Vort for the purpose of verifying Customer’s compliance with this Agreement and the applicable Order. The information collected by Vort may include the license key or account administrator (as applicable), and the number of licenses in use for the Product (the “Usage Data”). If the Product does not transmit Usage Data to Vort, then Customer will, upon Vort’s request (which may be made no more than annually), certify its use of the Product and permit Vort to review Customer’s use of the Product for compliance with this Agreement. Any review will be scheduled with at least five (5) business days’ notice, will be conducted remotely during normal business hours, and will not unreasonably interfere with Customer’s business activities. If Customer’s use of the Product is found to exceed that authorized by the applicable Order(s) (an “Overage”), such Overage will be deemed an Order for all licenses used in excess of the authorized quantity and will be invoiced to Customer, and Customer agrees to pay for such additional licenses at the same unit cost as the contracted quantity for the full remaining Subscription Term or Support Services Term, as applicable, in accordance with the terms of the Agreement.

3.3 Payment Terms. Vort will invoice Customer or Partner (as applicable) for fees as they become due and payable. Fees set forth in an Order will be invoiced in accordance with such Order, and fees due with respect to Professional Services will be invoiced in accordance with the applicable Order and/or SOW. Customer or Partner (as applicable) will pay Vort all invoiced amounts within thirty (30) days of receipt of the applicable invoice, unless the Order states a different payment term, in which case Customer or Partner (as applicable) will pay Vort within the timeframe stated in the Order. If payment of any fees (including any expense reimbursement) is not made when due and payable, a late charge will accrue at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by law. In addition, in the event Vort engages a collection agency to collect any past-due payment, Customer will pay a collection fee of thirty percent (30%) of the outstanding balance. Further, if Vort does not receive an overdue payment within thirty (30) days of the date such payment is due, Vort may suspend Customer’s access to the Products or performance of Services until such payment is made.

3.4 Net of Taxes. All amounts payable by Customer to Vort hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, knowhow payments, customs, privilege, excise, sales, use, valueadded and property taxes (collectively, “Taxes”). Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of Vort. Customer will not withhold any Taxes from any amounts due Vort without providing Vort a valid exemption certificate.

4. OWNERSHIP; RESERVATION OF RIGHTS.

4.1 Customer Data. Customer owns the unaltered data uploaded or entered by Customer into each Product (collectively, “Customer Data”). For the avoidance of doubt, Customer Data does not include data generated and made available to Customer through any Product or Service, nor anonymized and aggregated data created by or on behalf of Vort, in accordance with this Agreement (“Vort Data”). Customer hereby grants Vort a non-exclusive, worldwide, royalty-free, fully paid-up, sublicensable right and license to (a) copy, distribute, display, create derivative works from and use Customer Data to fulfill Vort’s obligations under this Agreement, and (b) copy, distribute, display, create derivative works from and otherwise use Customer Data to the extent such data is anonymized (i.e., without identifiable personal information) and/or aggregated. Customer reserves any and all rights, title and interest in and to Customer Data other than the rights and licenses expressly granted to Vort in this Section 4.1.

4.2 Product Ownership. Customer acknowledges and agrees that, as between the parties, Vort retains all rights, title and interest in and to the Products, all copies or portions thereof (produced by whomever), and all improvements, modifications and enhancements thereto, and all related intellectual property rights. Vort does not grant, and reserves any and all rights other than the rights expressly granted to Customer under this Agreement with respect to the Products.

4.3 Feedback. Customer may from time to time provide suggestions, comments for improvements or functionality, or other feedback (“Feedback”) to Vort with respect to the Products. Vort will have sole discretion to determine whether or not to proceed with the development of requested improvements, new features or functionality. Customer hereby grants Vort a royalty-free, fully paid-up, worldwide, transferable, sublicensable, irrevocable and perpetual license to (a) copy, distribute, transmit, display, perform and create derivative works of the Feedback; and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services that practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.

5. TERM, TERMINATION.

5.1 Term. The term of this Agreement begins on the Effective Date and continues until the expiration or termination of all Subscription Terms in accordance with the terms set forth herein or in the applicable Order (the “Term”). Each Subscription Term will continue for the period set forth in the Order and, thereafter, unless this Agreement and/or the applicable Order is earlier terminated in accordance with the terms set forth herein or in the applicable Order, such Subscription Term will automatically renew for additional one (1) year periods (each, a “Renewal Subscription Term”) unless either Party delivers to the other Party written notice of non-renewal at least sixty (60) days before the end of the then-current term (any such notice by Customer must be sent by email to customersuccess@Vort.com). Each Renewal Subscription Term will be deemed part of the applicable “Subscription Term.” Vort reserves the right to increase fees for each renewal.

5.2 Termination. In addition to any other remedy it may have, either Party may terminate this Agreement and/or any Order and/or any SOW upon written notice to the other Party if such other Party materially breaches this Agreement (or any Order or SOW) and fails to cure such breach within thirty (30) days of receipt of written notice thereof. Termination or expiration of this Agreement will not relieve Customer or Partner of its obligation to pay all fees due under any Order, SOW or this Agreement.

5.3 Effect of Termination. Upon expiration or termination of this Agreement, (a) all rights and licenses granted hereunder and all of Vort’s obligations to provide the Products and Services will immediately terminate, (b) all Orders and Statements of Work will immediately terminate, and (c) Customer will cease use of all Products. Immediately following expiration or termination of this Agreement, Vort will invoice Customer for any fees due and payable that Customer has not yet paid, and Customer will be obligated to pay all such amounts.

5.4 Survival. The provisions of this Agreement that by their nature are intended to survive termination or expiration of this Agreement will survive any termination/expiration of the Agreement and will remain in effect thereafter.

6. CONFIDENTIALITY AND PRIVACY.

6.1 Definition. “Confidential Information” means, subject to the exceptions set forth in the following sentence, any information or data, whether or not in tangible form, disclosed by either Party (the “Disclosing Party”) that the Disclosing Party has marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other Party (the “Receiving Party”); provided, however, information relating to business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services will be deemed Confidential Information of the Disclosing Party even if not marked or identified as such. Vort’s Confidential Information includes, without limitation, the Products, Services and Vort Data. Information and data will not be deemed Confidential Information hereunder if such information: (a) is known to the Receiving Party prior to its receipt from the Disclosing Party, directly or indirectly, from a source not under an obligation of confidentiality to the Disclosing Party; (b) becomes known (independent of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source not under an obligation of confidentiality to the Disclosing Party; (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (d) is independently developed by the Receiving Party.

6.2 Use and Disclosure of Confidential Information. The Receiving Party acknowledges that it will have access to the Disclosing Party’s Confidential Information. The Receiving Party will not (a) use such Confidential Information in any way, for its own benefit or that of third parties, except in the exercise of its rights and performance of its obligations under this Agreement or any SOW, nor (b) disclose such Confidential Information to any party, except that it may provide such Confidential Information to (i) its employees and consultants who require access to the Confidential Information in connection with the exercise of the Receiving Party’s rights and performance of its obligations under this Agreement or any SOW; and (ii) professional advisors (e.g., lawyers and accountants); provided that all such employees, consultants and advisors are bound by written agreements or, in the case of professional advisors, ethical duties, to treat, maintain and protect such Confidential Information in accordance with the terms and conditions of this Section 6. The Receiving Party will not permit any unauthorized person to access the Disclosing Party’s Confidential Information, and the Receiving Party will take all steps reasonably necessary to protect the confidentiality of such Confidential Information, including implementing and enforcing procedures to minimize the possibility of unauthorized use or copying of such Confidential Information.

6.3 Disclosures Required by Law. If the Receiving Party is required by any law, rule or regulation to make any disclosure of the Disclosing Party’s Confidential Information, whether by subpoena, judicial or administrative order or otherwise, the Receiving Party will first give written notice of such requirement to the Disclosing Party, and will allow the Disclosing Party to intervene in any relevant proceeding to protect its interests in the Confidential Information, and will provide full cooperation and assistance to the Disclosing Party in seeking to obtain such protection.

6.4 Remedies. Customer acknowledges that any unauthorized use of any Product may cause irreparable harm and injury to Vort for which there is no adequate remedy at law. In addition to all other remedies available under this Agreement, at law or in equity, Customer further agrees that Vort will be entitled to seek injunctive relief in the event Customer uses any Product in violation of the limited license granted herein or uses any Product in a manner not expressly permitted by this Agreement. Additionally, each Party acknowledges that any breach of this Section 6 may cause irreparable harm and injury to the other Party for which there is no adequate remedy at law. In addition to all other remedies available under this Agreement, at law or in equity, each Party further agrees that the other Party will be entitled to seek injunctive relief in the event such Party breaches this Section 6.

6.5 Privacy. To the extent Vort collects personal information in connection with this Agreement, Vort will only use such personal information in accordance with its Privacy Policy, which Vort may update from time to time, available at www.Vort.com/privacy.html, or pursuant to a mutually agreed data processing agreement, which will take precedence over the Privacy Policy.

7. REPRESENTATIONS, WARRANTIES AND DISCLAIMER.

7.1 Mutual Representations and Warranties. Each Party represents and warrants to the other Party that (a) such Party has the requisite power and authority to enter into this Agreement and to perform its obligations set forth herein; (b) the execution of this Agreement and performance of its obligations hereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties.

7.2 “AS IS” Warranty for Trial Version. CUSTOMER AND Vort AGREE THAT ANY BETA SOFTWARE, TRIAL SOFTWARE OR ANY OTHER PRODUCT PROVIDED FREE OF CHARGE IS OFFERED “AS IS,” WITHOUT SUPPORT OR INDEMNIFICATION, AND THAT Vort MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE BETA SOFTWARE, TRIAL SOFTWARE OR ANY OTHER PRODUCT PROVIDED FREE OF CHARGE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.

7.3 Vort’s Representations and Warranties for Software. Vort warrants that for a period of thirty (30) days from the date Vort issues Customer’s license keys or access credentials for the Products: (i) the media provided by Vort, if any, on which the Software (excluding Beta Software or Trial Software) is recorded will be free from material defects in materials and workmanship under normal use, and (ii) the Products (excluding Beta Software or Trial Software), as provided by Vort, will substantially conform to the specifications in the Documentation applicable to such Software (collectively, the “Product Warranties”). Customer must report in writing any breach of the Software Warranties to Vort during the warranty period, and Customer’s sole remedy, and Vort’s sole obligation, for such breach of warranty will be for Vort to replace the defective media and correct or provide a workaround for reproducible errors that cause a breach of the Product Warranties within a reasonable time considering the severity of the error and its effect on Customer or, at Vort’s option, refund the fees paid for the nonconforming Products upon return of such Product to Vort and termination of the related license hereunder. The Product Warranties will not apply to the extent arising from: (a) modification of the applicable Product; (b) use of the Product other than as set forth in the Documentation or in violation of this Agreement; (c) combination of the Product with other items not supplied by Vort; or (d) Customer’s failure to apply an update made available by Vort as part of the Support Services or otherwise recommended by Vort, which would have resolved the breach of the Product Warranties.

7.4 Vort’s Representations and Warranties for Professional Services. Vort represents and warrants to Customer that the Professional Services will be performed in a professional and workmanlike manner, in accordance with generally recognized and accepted standards and quality within its industry.

7.5 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND Vort DISCLAIMS ALL WARRANTIES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (WHETHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER. EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE AND NON-INFRINGEMENT. NEITHER PARTY WARRANTS THAT THE PRODUCTS OR SERVICES PROVIDED BY SUCH PARTY WILL BE ERROR-FREE OR THAT THE OPERATION OF SUCH PARTY’S PRODUCTS OR SERVICES WILL BE SECURE OR UNINTERRUPTED.

8. LIMITATIONS OF LIABILITY.

8.1 Disclaimer of Consequential Damages. THE PARTIES AGREE THAT, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EXCEPT FOR LIABILITY ARISING FROM (A) CUSTOMER’S BREACH OF SECTION 1.2 OR 1.3 ABOVE OR (B) BREACH OF ANY PART OF SECTION 7 ABOVE, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.

8.2 General Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EXCEPT FOR LIABILITY ARISING FROM (A) CUSTOMER’S BREACH OF SECTION 1.2 OR 1.3 ABOVE, (B) BREACH OF ANY PART OF SECTION 6 ABOVE, OR (C) THE INDEMNIFICATION OBLIGATIONS SET FORTH BY EITHER PARTY IN SECTION 9 BELOW, AS APPLICABLE, IN NO EVENT WILL EITHER PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, WARRANTY CLAIMS), REGARDLESS OF FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY CUSTOMER TO Vort UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. NOTWITHSTANDING THE FOREGOING, IN NO EVENT WILL EITHER PARTY’S LIABILITY FOR ANY CLAIM ARISING UNDER OR IN CONNECTION WITH A SPECIFIC STATEMENT OF WORK, REGARDLESS OF FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY CUSTOMER TO Vort UNDER SUCH STATEMENT OF WORK DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. THE FOREGOING LIMITATIONS OF LIABILITY ARE CUMULATIVE AND NOT PER INCIDENT. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY IN THIS SECTION 8 OR ELSEWHERE IN THIS AGREEMENT, IN NO EVENT WILL Vort’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT EXCEED TWO TIMES (2X) THE TOTAL FEES PAID BY CUSTOMER TO Vort UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY.

8.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT SETS FORTH A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES IS INTENDED TO ALLOCATE THE RISKS OF THE AGREEMENT BETWEEN THE PARTIES. EACH SUCH PROVISION IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH SUCH PROVISION WILL APPLY EVEN IF IT HAS FAILED OF ITS ESSENTIAL PURPOSE.

9. INDEMNIFICATION.

9.1 Indemnification by Vort. Vort will indemnify, defend and hold Customer and the officers, directors, agents, and employees of Customer (“Customer Indemnified Parties”) harmless from settlement amounts and damages, liabilities, penalties, costs and expenses (“Liabilities”) that are payable to any third party or incurred by the Customer Indemnified Parties (including reasonable attorneys’ fees) arising from, directly or indirectly, any claim, demand or allegation by a third party that arises out of an allegation that Customer’s authorized use of any Product infringes or misappropriates a third party’s U.S. patent or copyrights. Notwithstanding the foregoing, Vort will have no liability or obligation under this Section 9.1 with respect to any Liability if such Liability is caused in whole or in part by (a) modification of the applicable Product by any party other than Vort without Vort’s express consent; (b) the combination, operation, or use of such Product with other product(s), data or services where such Products would not by itself be infringing; or (c) unauthorized or improper use of such Product. If the use of any Products by Customer has become, or in Vort’s opinion is likely to become, the subject of any claim of infringement, Vort may at its option and expense (i) procure for Customer the right to continue using such Product as set forth hereunder; (ii) replace or modify such Product to make it non-infringing so long as such Product has at least equivalent functionality; (iii) substitute an equivalent for such Product; or (iv) if options (i)-(iii) are not reasonably practicable, terminate this Agreement. This Section 9.1 states Vort’s entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.

9.2 Indemnification by Customer. Customer will indemnify, defend and hold harmless Vort and the officers, directors, agents and employees of Vort (the “Vort Indemnified Parties”) from Liabilities that are payable to any third party or incurred by the Vort Indemnified Parties (including reasonable attorneys’ fees) arising from, directly or indirectly, any claim, demand or allegation by a third party resulting from (a) Vort’s authorized use of Customer Data, or (b) any use or disclosure by Customer of any Product in violation of this Agreement.

9.3 Indemnification Procedure. If a Customer Indemnified Party or a Vort Indemnified Party (each, an “Indemnified Party”) becomes aware of any matter it believes is subject to indemnification under Section 9.1 or Section 9.2, as applicable, involving any claim, action, demand, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give prompt written notice to the other Party (the “Indemnifying Party”) of such Action. The Indemnified Party will cooperate, at the Indemnifying Party’s expense, with the Indemnifying Party and its counsel in the defense, and the Indemnified Party will have the right to fully participate, at its own expense, in the defense of such Action with counsel of its choice. Any settlement or compromise of an Action will require the prior written consent of both Parties hereto, such consent not to be unreasonably withheld or delayed.

10. COMPLIANCE WITH LAWS.

10.1 Compliance with Laws. Each Party will comply with all applicable federal, state, county and local laws, ordinances, regulations, rules and codes applicable to such Party in connection with its activities under this Agreement.

10.2 U.S. Export Control Laws. Notwithstanding any other provision of this Agreement, each Party will remain responsible for its compliance with all applicable U.S. export control laws and economic sanctions programs relating to its respective business, facilities and personnel. U.S. export control laws prohibit or restrict (a) transactions with certain persons, and (b) the type and level of technologies and services that may be exported. These laws include the Arms Export Control Act, the Export Administration Act, the International Emergency Economic Powers Act, the Atomic Energy Act and the regulations issued thereunder, including the Export Administration Regulations (EAR) (15 CFR Parts 730-774), the International Traffic in Arms Regulations (ITAR) (22 CFR Parts 120-130), and the export regulations of the Nuclear Regulatory Commission and the Department of Energy (10 CFR Parts 110 and 810). Export control requirements may change, and export of goods and/or technical data from the U.S. without an export license or other appropriate government authorization may result in criminal liability. Each Party acknowledges that it may contact the U.S. Departments of Commerce, State, Energy and Treasury for guidance on applicable licensing requirements and restrictions. Neither Party will export, re-export or transfer technical specifications or data received from the other Party to foreign persons or countries in a manner inconsistent with applicable export control regulations or economic sanctions.

11. GENERAL.

11.1 Independent Contractor. Vort acts, in the performance of this Agreement, as an independent contractor. Personnel provided by Vort hereunder are not employees or agents of Customer. Vort will be solely responsible for payment of compensation to its personnel. Vort will have no right, power or authority to create, and will not represent to any person that it has such power to create, any obligation, express or implied, on behalf of Customer without Customer’s prior express written consent.

11.2 Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware governing such agreements, without regard to conflict of laws principles. The exclusive jurisdiction and venue for any litigation arising out of this Agreement will be an appropriate federal or state court located in Delaware, and the parties agree not to assert, and waive, any objection or defense based on venue or forum non conveniens. Notwithstanding the foregoing, if Customer has a shipping address within the United Kingdom, the Republic of Ireland or another address within the European Union, this Agreement will be governed by and construed in accordance with the laws of England and Wales, without reference to conflict of laws principles, and the courts of England and Wales will have exclusive jurisdiction to determine any dispute, legal action or proceeding arising out of or in connection with this Agreement, including its subject matter and interpretation.

11.3 Entire Agreement; Precedence. This Agreement, the Order(s) and any Statement of Work contain the final and entire agreement between the Parties with respect to the provision of the Products and performance of the Services and supersede all prior and contemporaneous conduct, agreements, statements, representations, negotiations, course of conduct, course of dealing and communications relating to such Services and Products, whether written or oral. This Agreement may not be modified or amended except pursuant to a written agreement signed by an authorized representative of each Party. Any contrary or additional terms or conditions in any purchase order or other document issued by Customer or Partner are for administrative convenience only and will not be binding on Vort, even if signed by Vort, and Vort’s execution will not constitute Vort’s acceptance of any contrary or additional terms or conditions. In the event of any conflict between this Agreement and a SOW, the terms and conditions of this Agreement will control unless such SOW expressly modifies such terms and conditions, in which case such modified terms and conditions will govern with respect to such SOW only.

11.4 Force Majeure. Each Party will be excused from performance of its obligations during any period in which, and to the extent that, it is prevented from performing any of its obligations under this Agreement, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fires, failures of communication lines, power failures, earthquakes, floods, snowstorms, or other natural disasters (but excluding failures caused by a party’s financial condition or any internal labor issue (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”). Delays in performance of obligations due to a Force Majeure Event will automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Except as otherwise agreed by the Parties in writing, in the event such failure continues for a period of thirty (30) days or more, either Party may terminate this Agreement upon written notice to the other Party. Upon the occurrence of any Force Majeure Event, the affected Party will notify the other Party in writing as soon as reasonably practicable of its failure to perform, describing the cause and effect of such failure, and the anticipated duration of its inability to perform.

11.5 Publicity. Neither Party will use the other Party’s name in any public announcement, press release or other promotional materials without the other Party’s prior written consent; provided, however, that Customer agrees that Vort may, without such consent, (a) list Customer’s name (including by displaying any Customer trademark) and identify the business relationship between the Parties on Vort’s website and in other marketing and advertising materials, alongside a list of other customers, and (b) if Customer identifies Vort in any publicly available document, issue a press release referencing such public disclosure and Customer’s use of the Product(s).

11.6 Waiver. A Party’s failure or delay in enforcing the terms and conditions of this Agreement or in insisting upon strict performance of any of the other Party’s obligations will not be construed as a waiver thereof. A waiver of any provision of this Agreement by either Party will only be effective if made in writing and will not be construed as a waiver of any subsequent breach or failure under the same provision or any other provision of this Agreement. No conduct, statement, course of conduct, dealing, oral expression or other action will be construed as a waiver.

11.7 Severability. If any provision of this Agreement is found to be unenforceable or invalid, such provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

11.8 Assignment. Neither Party may assign this Agreement to a third party without the other Party’s prior written consent; provided, however, that either Party may assign this Agreement to an acquirer or successor of all or substantially all of the business or assets to which this Agreement relates, whether by merger, asset sale, stock sale, reorganization or otherwise. Any assignment or attempted assignment by either Party not in accordance with this Section 11.8 will be null and void.