Master Agreement

This Master Agreement is entered into by BlueCat, as defined below, and the company indicated below (“Customer”), effective as of the later date of signature indicated below (“Effective Date”).

Customer Information
Customer’s Full Legal Name
Jurisdiction of Incorporation
Mailing Address
Contact Person (name and title)
Telephone
Email

Now, therefore, in consideration of the foregoing recitals, the mutual covenants of the Parties in this Agreement, and other good and valuable consideration, by executing below, the Parties agree to the terms and conditions set out on the following pages.

BlueCat	Customer
	Print Name:
Authorized Signing Officer	Title:
Date:	Date:
Email: [email protected]	Email:

1. Definitions

1.1. Definitions.

In this Agreement, except where the context or subject matter is inconsistent therewith, the following terms shall have the following meanings, and such meanings shall apply to both singular and plural forms of any such terms:

“Access Methods” means the user identifiers and passwords for the BlueCat Offerings issued by Customer to Authorized Users pursuant to this Agreement;

“Acceptable Use Policy” means BlueCat’s acceptable use policy located at https://www.bluecatnetworks.com/license-agreements/, as may be updated by BlueCat from time to time;

“Adaptive Application” means application tools provided by BlueCat to Customer designed to facilitate or enhance the use of BlueCat Offerings, as may be designated in writing by BlueCat from time to time;

“Adaptive Plug-In” means a plug-in integration designated in writing by BlueCat which may increase functionality of the BlueCat Offerings;

“AI Features” means any functionality in the BlueCat Offerings that uses artificial intelligence or machine learning (including large language models) to generate, analyze, classify, summarize, recommend, predict, or otherwise process information;

“Affiliate” means a Party’s direct or indirect parent or subsidiary corporation (or other entity), or any corporation (or other entity) with which the Party is under common control;

“Agreement” means this Master Agreement and any other document incorporated by reference herein;

“Ancillary Service Software” means any software provided by BlueCat that is required to be installed and executed in order to facilitate Customer’s use of the Cloud Services;

“API” means BlueCat owned or licensed application programming interface made available by BlueCat as part of the applicable BlueCat Offerings;

“Authorized User” means any employees and agents of Customer to whom Customer gives access to the BlueCat Offerings pursuant to this Agreement;

“BlueCat” means:

BlueCat Networks (USA) Inc., located at 156 W. 56th Street, 3rd Floor, New York, NY, 10019 USA, with respect to Customers located in the United States of America and Japan;

BlueCat Networks, Inc., located at 4100 Yonge Street, 3rd Floor, Toronto, Ontario, M2P 2B5 Canada, with respect to Customers located outside the United States of America and Japan;

BlueCat Federal USA, Inc. located at 201 N. Union Street, Suite 210, Alexandria VA, 22314 USA with respect to Federal and State Government Customers located in the United States of America; or

for the purposes of a particular Purchase Order, such other BlueCat Affiliate noted in the Purchase Order.

“BlueCat Customer Care Support Handbook” means the support handbook available from BlueCat, as may be updated from time to time by BlueCat in its sole discretion and made available in the BlueCat Customer Care Portal;

“BlueCat Offerings” means the Software Products, Hardware Products, Cloud Services, Support, Professional Services, AI Features and any other products or services made available by BlueCat;

“Cloud Services” means a software-as-a-service offering hosted by or on behalf of BlueCat and made available by BlueCat for subscription by Customer, as well as any Ancillary Service Software and any Support for the Cloud Services, and any software made available for access and use as part of the Cloud Services as set out in the BlueCat Offerings document available at https://www.bluecatnetworks.com/license-agreements/;

“Confidential Information” means any and all information disclosed by the disclosing Party to the recipient Party pursuant to this Agreement relating to its products, services, customers, marketing, research and development, business and finances, information technology networks, including all technical information, data, documentation, code, security measures and procedures and copies thereof, which is either explicitly marked or noted at the time of disclosure as confidential or which a reasonable party would deem to be non-public and confidential. Non-public features of the Cloud Services shall be considered Confidential Information. In addition, Documentation shall be considered Confidential Information. Confidential Information shall not include information which a recipient Party can establish to have: (i) become publicly known through no action on the recipient’s part; (ii) been lawfully known by the recipient prior to receipt; (iii) been independently developed by the recipient without reference to any information received from the disclosing Party; or (iv) been approved for public release by the written authorization of the disclosing Party. Specific information received shall not be deemed to fall within the exceptions to Confidential Information set forth above merely because it is embraced by general information within the exception;

“Customer Data” means data or information provided by Customer to BlueCat through access or use of the BlueCat Offerings. Customer Data excludes Telemetry Data;

“Data Processing Agreement” means the applicable Data Processing Agreement located at https://www.bluecatnetworks.com/license-agreements/, as may be updated by BlueCat from time to time;

“Documentation” means all standard user guides, on-line user guides, operating manuals and release notes for the operation of the BlueCat Offerings, made available in electronic format from BlueCat, and any revisions, updates and supplements thereto, as such documentation may be amended by BlueCat from time to time or embedded in any BlueCat Offering;

“Entitlement” means the specific metrics, duration and quantity of the Software Products or Cloud Services acquired as described in the BlueCat Offerings document available at https://www.bluecatnetworks.com/license-agreements/ and identified in the applicable Purchase Order;

“Effective Date” is defined in the first paragraph of this Agreement;

“E-Learning” means BlueCat’s training courses made available to Customer;

“Hardware Products” means any physical computer hardware component sold by BlueCat where Software or any Ancillary Service Software is resident or installed;

“Hosted Services” means the hosted external DNS services available from BlueCat from time to time;

“Intellectual Property Rights” means all intellectual property and other proprietary rights, including all rights provided under trade secret law, patent law, copyright law, trade mark or service mark law, design patent or industrial design law, semi-conductor chip or mask work law, and any other statutory provision or common law principle which may provide a right in either ideas, formulae, algorithms, concepts, inventions or know-how, whether registered or not and including all applications therefor;

“Party” means either BlueCat or Customer and “Parties” refers to both BlueCat and Customer;

“Personal Data” means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;

“Professional Services” means professional services provided by BlueCat to its customers in connection with the purchase, configuration and/or implementation of Software Products or Cloud Services;

“Purchase Order” means an order schedule, a sales quote, a SOW, or any other document confirming any BlueCat Offerings to be purchased and any applicable Subscription Period(s) and Entitlements, issued or accepted by BlueCat;

“Reseller” means a party authorized by BlueCat to resell BlueCat Offerings;

“Service Level Schedule” means the service level schedule related to Cloud Service, as may be updated by BlueCat from time to time and published at https://www.bluecatnetworks.com/license-agreements/;

“Software” means the then current object code version of the computer program or application licensed by BlueCat to Customer pursuant to this Agreement, as evidenced either on a Hardware Product or available for download, in each case, as part of a Software Product;

“Software Products” means the software products offered by BlueCat for license as set out in the BlueCat Offerings document available at https://www.bluecatnetworks.com/license-agreements/ and any Adaptive Application made available by BlueCat;

“SOW” means a statement of work setting out the details of the Professional Services to be provided by BlueCat to Customer;

“Subscription” means a subscription for the Subscription Period to (i) with respect to Software Products, license and use Software Products, and, to the extent ordered, to receive Support, ordered and paid for pursuant to one or more Purchase Orders; and (ii) with respect to Cloud Services, to access and use the Cloud Services, and to receive Support for such Cloud Services, ordered and paid for pursuant to one or more Purchase Orders;

“Subscription Period” mean the time period of each Subscription set out in the applicable Purchase Order and commences upon earliest delivery of the applicable BlueCat Offering. If no time period is set out in a Purchase Order, the Subscription Period will be the twelve (12) month period commencing upon delivery of the applicable BlueCat Offering;

“Support” means (i) for Software Products, the maintenance services relating to updates, upgrades, patches, bug fixes and other improvements to the Software and the technical support services as described in the BlueCat Customer Care Support Handbook and (ii) for Cloud Services, the support services set out in the Service Level Schedule and the BlueCat Customer Care Support Handbook.

“Telemetry Data” means (i) usage data, health data, performance data, operational data, technical data, set-up and configuration data, alerts, flow data, and other data associated with Customer’s use of the BlueCat Offerings or the performance of the BlueCat Offerings, (ii) data, information, statistics, results, feeds, graphs, analysis, and reports, computed and generated by or from the Software Products or Cloud Services, (iii) information, metrics, logs, inventory reports, issues identified, alerts, IP addresses, device type and name, and application type and name, regarding devices or applications that the Software Products or Cloud Services might be connected to or monitoring, and (iv) configuration, back-up and restore data for the Software Products or Cloud Services. Telemetry Data is not Customer Data and does not contain any Personal Data. Telemetry Data is further described in the Telemetry Data Sheet available at https://trustcenter.bluecatnetworks.com.

1.2. Purchase Orders.

All orders of BlueCat Offerings and other ancillary purchases by Customer shall be evidenced by a Purchase Order. The terms of all Purchase Orders, whether issued and accepted before or after the execution of this Agreement, must be consistent with this Agreement, unless specifically stated and agreed to by the Parties in writing. No terms in any form of Customer Purchase Order, other than the identification, price, quantity and license model of the BlueCat Offerings, the Subscription Period, if applicable, the applicable pricing, and the address for invoicing and delivery, if applicable, shall be binding on BlueCat, unless specifically stated and agreed to by the Parties in writing.

2. BlueCat Software Products

2.1. Grant of License.

BlueCat grants to Customer a non-exclusive, non-transferable, non-assignable, non-sublicenseable license to use the Software Products identified on any Purchase Order up to the Entitlement, subject at all times to the terms and conditions set forth in this Agreement.

2.2. Duration of License.

Software Products licensed on a Subscription basis are temporary and expire when the Subscription Period for the relevant Software Product(s) expires or is terminated. For Software licensed on a perpetual basis, such licenses will become perpetual (unless terminated as provided herein or as otherwise set out in a Purchase Order) when all payments for such licenses have been received by BlueCat.

2.3. Support.

BlueCat shall provide the standard Support for the applicable Software Product to the extent specified in a Purchase Order. Support shall be provided as a Subscription during the Subscription Period. Once paid, Support fees are non-refundable.

3. BlueCat Cloud Services

3.1. Access and Use.

Subject to the terms and condition of this Agreement, Customer may remotely access and use the Cloud Services on a non-exclusive, non-transferable, non-assignable basis up to the Entitlement for the applicable Subscription Period identified on a Purchase Order.

3.2. Service Levels, Sole Remedy.

BlueCat will make the Cloud Service available to Customer in accordance with the applicable Service Level Schedule. BlueCat’s obligations in the Service Level Schedule do not apply to the extent: (a) Customer’s system does not meet the minimum requirements listed in the Documentation to support the applicable BlueCat Offering; (b) Customer has breached or continues to breach this Agreement; and/or (c) the Service Availability (as defined in the Service Level Schedule) is impacted by Customer’s failure to incorporate or utilize any recommendations or data produced by the applicable BlueCat Offering (e.g. security recommendations emanating from the applicable BlueCat Offering). The remedies listed in the Service Level Schedule are Customer’s sole remedy and BlueCat’s sole obligation for any failure of the Cloud Service.

3.3. Security.

BlueCat will maintain commercially reasonable administrative, physical and technical safeguards for the protection, confidentiality and integrity of the Cloud Services and Customer Data.

3.4. Updates and Modifications.

Customer acknowledges and agrees that from time to time BlueCat may apply updates to, or otherwise revise, the Cloud Services and that such updates and/or revisions may result in additions, modifications or removal of functionality, features, content or the appearance of the Cloud Services.

3.5. Ancillary Services Software.

BlueCat grants to Customer a non-exclusive, non-transferable, non-sublicenseable, revocable and limited license to use the Ancillary Service Software during the applicable Subscription Period solely for Customer’s internal business purposes. In addition, BlueCat shall provide Support for the Ancillary Service Software during the applicable Subscription Period. Customer’s right to use such software and to receive Support for such Software ceases when the right to access and use Cloud Services, as applicable, ends. At such time, each copy of the Ancillary Service Software must be promptly uninstalled or BlueCat may disable the Ancillary Service Software.

4. Additional Terms & Restrictions

4.1. License and Subscription Models.

The BlueCat Offerings are provided or made available based on the Entitlement identified in the applicable Purchase Order. Usage of the BlueCat Offerings may not exceed the applicable Entitlement. Where Customer’s usage exceeds its Entitlement, Customer will be invoiced for any over usage at the then-current list price. Customer will use the BlueCat Offerings in accordance with the Documentation.

4.2. Acceptable Use Policy.

Customer agrees to, and agrees to ensure that its Authorized Users will, comply with the Acceptable Use Policy.

4.3. Suspension of Perpetual Licenses.

If Customer is transitioning from existing BlueCat perpetual licenses to subscription licenses, upon delivery of the subscription licenses, all perpetual licenses being replaced are suspended during the Subscription Period.

4.4. APIs, Adaptive Application, Adaptive Plug-Ins.

If BlueCat makes available any APIs, Adaptive Applications or Adaptive Plug-Ins to Customer as part of the BlueCat Offerings, then Customer may access them on a non-exclusive, non-transferable, non-assignable basis for the applicable Subscription Period and subject to the following:

1. Customer is responsible for making and maintaining all necessary arrangements to access, use, and interface with any APIs per the Documentation. APIs are subject to the requirements in the Documentation. BlueCat may from time to time on reasonable notice require Customer at Customer’s own cost to take such steps as are required to integrate any modifications or updates BlueCat makes to APIs. BlueCat reserves the right to restrict Customer access to the APIs if BlueCat reasonably determines, in BlueCat’s sole discretion, that the volume of queries originating from Customer is unduly burdening any API.
2. BlueCat may provide Customer with source code in connection with Customer’s use of the Adaptive Applications. Customer agrees not to alter or otherwise modify the Adaptive Application source code. BlueCat shall provide Support for the Adaptive Applications during the applicable Subscription Period, however, BlueCat’s obligation to provide Adaptive Application Support shall cease if Customer alters or otherwise modifies the Adaptive Application source code.
3. Customer is responsible for making and maintaining all necessary arrangements to access, use, and interface with any Adaptive Plug-Ins in accordance with the Documentation. BlueCat shall use reasonable commercial efforts to provide support for the Adaptive Plug-Ins during the applicable Subscription Period.

4.5. Hardware Products.

Upon payment of applicable additional fees set out in the Purchase Order, BlueCat shall provide the Hardware Products identified in the Purchase Order.

4.6. AI Features, Professional Services, Managed Services, Hosted Services, E-Learning.

Any Professional Services, Managed Services, Hosted Services, and/or E-Learning Services shall be subject to the additional terms and conditions set out at https://www.bluecatnetworks.com/license-agreements/.

4.7. Access Methods, Authorized Users, Unauthorized Access or Use.

Customer agrees that it is responsible for protecting the security and integrity of the Access Methods. Customer shall be fully responsible for any Authorized Users’ breach of this Agreement. Customer agrees that it is liable for any acts or omissions occurring under any Access Methods, whether by Authorized Users or otherwise. Each Party shall notify the other Party promptly of any suspected or known unauthorized access or use of the BlueCat Offerings, will use commercially reasonable efforts to prevent such unauthorized access or use, and will use commercially reasonable efforts to stop said unauthorized access or use.

5. Invoices, Delivery, Access and Payment

5.1. Invoices.

Upon the delivery of any BlueCat Offering, BlueCat shall issue Customer an invoice. Invoices will indicate the currency in which payment is due. All fees are exclusive of sales, use, consumption and value add taxes, which shall be the responsibility of the Customer.

5.2. Payment Terms, No Refund.

All invoices are due, and Customer agrees to pay each such invoice, in full thirty (30) days from the date of invoice without deduction or set off. Except as otherwise permitted in this Agreement, once paid, fees are non-refundable. All applicable sales and use taxes shall be identified on the invoice and are the responsibility of the Customer. In the event of payment after the due date, interest shall be payable on the overdue amount at the rate of one and one half (1.5%) percent per month, calculated and compounded monthly, or the maximum rate permitted by law, whichever is less, calculated from the due date to the date of payment. All prepaid fees are non-refundable. Should Customer terminate (or not renew prior to contract end date) annual Support services and subsequently re-instates them, Customer may be subject to the then-current reinstatement fee.

5.3. Delivery, Risk of Loss, Access.

1. For Software Products or Ancillary Service Software provided via Hardware Products, BlueCat shall arrange for delivery of Hardware Products to the address indicated in the Purchase Order, provided that all costs related to customs, shipping and insurance of the Appliances are paid by Customer. Delivery of Hardware Products and risk of loss will pass to Customer FOB shipping point.
2. For Software Products provided for download and installation on Customer equipment or environment or for any other Ancillary Service Software, BlueCat shall arrange for virtual delivery of such Software by making it available for download, such as providing a license key, at which point delivery will be deemed to be complete, and
3. For Cloud Services, BlueCat shall arrange for delivery by making such Cloud Services available for use by providing login credentials to Customer, at which point delivery will deemed complete.

6. Limited Warranties for Software and Appliances, Disclaimer

6.1. Software Product Warranty; Ancillary Service Software Warranty.

For a period of thirty (30) days following delivery, all ordered Software Products and Ancillary Service Software will perform substantially in accordance with their Documentation and will have been scanned by BlueCat for known viruses using commercially reasonable methods and antivirus software prior to delivery to Customer. Such warranty does not apply: (a) to any change or service to such Software made by any party other than BlueCat or its authorized agent; (b) to the operation of such Software with software or hardware not approved by BlueCat, its authorized agent or as specified in the Documentation; (c) if such Software was used in a manner other than as contemplated in this Agreement or the Documentation; or (d) to failure by Customer to report a warranty claim within the warranty period specified in this Section 6.1.

6.2. Remedy.

Upon a valid Software warranty claim by Customer, BlueCat shall, in its sole discretion: (a) in the case of a defective Hardware Product, repair or replace the Hardware Product, (b) deliver a replacement copy of such Software, or (c) where (a) and (b) are not successful after a reasonable remedy period, refund all fees paid to BlueCat and attributable to the item giving rise to the warranty claim. The foregoing remedies are BlueCat’s sole obligation and Customer’s sole remedy in the event of a valid warranty claim under this Section 6.

6.3. Warranty Disclaimer.

EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, BLUECAT DOES NOT REPRESENT OR WARRANT THAT THE BLUECAT OFFERINGS WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ANY OR ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF ANY OF THEM. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE BLUECAT OFFERINGS ARE PROVIDED “AS IS” AND “AS AVAILABLE”. CUSTOMER ACKNOWLEDGES THAT: (A) ANY OUTCOME FROM THE USE OF APPLICABLE BLUECAT OFFERINGS IS LIMITED TO A POINT-IN-TIME EXAMINATION OF CUSTOMER DATA; AND (B) THE APPLICABLE BLUECAT OFFERINGS DO NOT PROVIDE ANY FORM OF ASSURANCES OR GUARANTEES THAT CUSTOMER SYSTEMS ARE SECURE FROM EVERY FORM OF ATTACK. CUSTOMER ACKNOWLEDGES THAT NOT ALL ANOMALIES OR INTRUSIONS MAY BE REPORTED OR PREVENTED. BLUECAT EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF ANY OF THE BLUECAT OFFERINGS IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BLUECAT HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS AND GUARANTEES, EXPRESS OR IMPLIED (WHETHER ARISING UNDER COMMON LAW, STATUTE, COURSE OF DEALING OR TRADE, OR OTHERWISE), INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OR CONDITION OF QUALITY, MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, NON-INFRINGEMENT, CURRENCY, RELIABILITY, SECURITY, OR UNINTERRUPTED USE. NO WRITTEN OR ORAL INFORMATION OR ADVICE GIVEN BY BLUECAT WILL CREATE ANY REPRESENTATION, WARRANTY OR CONDITION.

7. Confidentiality, Non-Disclosure and Non-Solicitation

7.1. Non-Disclosure.

Each of the Parties agrees that it will not: (a) make use of the Confidential Information of the disclosing Party other than to perform its obligations under this Agreement; or (b) in any way disclose any Confidential Information of the disclosing Party to any person or entity, other than its own personnel to the extent necessary to give effect to this Agreement and only to those of its personnel who have agreed to be bound by confidentiality obligations no less protective than those set forth in this Agreement. Each receiving Party is responsible for any breach of this Agreement by any person to whom it provides, or provides access to, Confidential Information. Each receiving Party shall safeguard the disclosing Party’s Confidential Information using the same standard it employs to safeguard its own confidential information of like kind, but in no event less than a commercially reasonable standard of care.

7.2. Destruction of Confidential Information.

Upon the termination of this Agreement, or at any time at the disclosing Party’s request, the recipient Party shall destroy Confidential Information of the disclosing Party in its possession or control except to the extent it would be unreasonably burdensome to destroy such information (such as archived computer records), and such information will continue to be treated as Confidential Information, notwithstanding any termination or expiration of this Agreement. Upon the request of the disclosing Party, the recipient Party shall certify in writing that all materials containing Confidential Information of the disclosing Party have been destroyed and no further Confidential Information of the disclosing Party is in the possession or control of the recipient Party.

7.3. No Rights to Confidential Information.

All Confidential Information remains the sole property of the disclosing Party and no license or other rights to Confidential Information is granted or implied by this Agreement.

7.4. Required Disclosure.

In the event that Confidential Information has been required to be disclosed in response to a valid order issued by a court, governmental or regulatory body with jurisdiction over the recipient, then such Confidential Information may be disclosed pursuant to such requirement so long as the Party required to disclose the Confidential Information, to the extent possible, provides the other Party with timely prior notice of such requirement and coordinates with the other Party in an effort to limit the nature and scope of such required disclosure.

7.5. Non-Solicitation.

For so long as Customer is receiving BlueCat Offerings from BlueCat and for a period of one year thereafter, Customer will not directly or indirectly solicit, employ or engage any BlueCat employees or cause any of them to terminate their relationship with BlueCat.

8. Ownership, Intellectual Property, Data, Privacy, Third Party Software

8.1. Ownership, Feedback.

As between the parties, all ownership and Intellectual Property Rights in and to the BlueCat Offerings belong to BlueCat, its Affiliates or its licensors. Customer receives no title or ownership in any of the foregoing. The Software Products and any Ancillary Service Software provided to Customer pursuant to this Agreement are licensed, and not sold, and Customer receives no title or ownership in any of the foregoing. BlueCat reserves all rights not expressly granted under this Agreement. Any feedback, comments, suggestions, feature requests, bug reports, improvements, or other similar information provided by Customer to BlueCat related to or in connection with the BlueCat Offerings may be used by BlueCat for its internal business purposes, including without limitation for product development and support, without any restrictions.

8.2. Telemetry Data.

Customer acknowledges that BlueCat and its Affiliates may collect and process Telemetry Data and the BlueCat Offerings may automatically send Telemetry Data to BlueCat and its Affiliates. The Telemetry Data may be hosted and otherwise processed by or on behalf of BlueCat, its Affiliates or third-party service providers in connection with delivery of the BlueCat Offerings as well as for its own internal purposes, such as to develop, test, improve, increase service and product value, train machine learning or other artificial intelligence algorithms, optimize the BlueCat Offerings and/or publish aggregate information; subject in all cases to applicable laws and provided that BlueCat shall not disclose any data that identifies the Customer or any individual. All Intellectual Property Rights in and to Telemetry Data belong to BlueCat.

8.3. Customer Data.

All ownership rights in and to Customer Data belong to Customer. Customer hereby consents and grants to BlueCat a non-exclusive, worldwide right to use, process and transmit the Customer Data so that BlueCat may (i) provide or administer the applicable BlueCat Offering, (ii) monitor compliance with this Agreement, and (iii) manage its relationship with the Customer. Customer has sole responsibility for, and BlueCat disclaims all liability for, the Customer Data. Customer represents and warrants that Customer has all rights in the Customer Data that are necessary and sufficient to grant the rights contemplated by this Agreement. If Customer Data includes any Personal Data, BlueCat will process such Personal Data pursuant to the terms of its Privacy Statement, available at https://www.bluecatnetworks.com/privacy/, and the parties agree that the Data Processing Agreement forms a part of this Agreement and is incorporated herein by reference.

8.4. Third Party and Open-Source Software.

BlueCat Offerings may contain third-party components, including open-source software, as described in the Documentation. The applicable third-party terms, including open-source license terms, described in the Documentation will control with respect to the third-party components.

9. Indemnification

9.1. BlueCat’s Indemnification Obligations.

BlueCat will defend Customer against third party claims that the BlueCat Offerings (or any portion thereof) violate a third party’s Intellectual Property Rights in Canada, the United States, Japan, the United Kingdom or the European Economic Area and will indemnify Customer against amounts required to be paid in a settlement approved by BlueCat or awarded by a court in a final, non-appealable judgement; provided: (a) Customer has promptly notified BlueCat in writing of such claim and BlueCat is not prejudiced by any delay by Customer; (b) BlueCat shall have full control over the defense of the claim, provided that any settlement or resolution entered into by BlueCat shall not require any admission of liability or any payment by Customer; (c) Customer has not made any admission against BlueCat’s interests and has not agreed to any settlement of any claim or demand without BlueCat’s consent; and (d) Customer shall cooperate with BlueCat in the defense of the claim, at BlueCat’s expense.

9.2. Exceptions to BlueCat’s Indemnification Obligations.

Notwithstanding Section 9.1, BlueCat shall be under no obligation to indemnify or defend Customer if any infringement claim by a third party arises as a result of any: (a) access or use of the BlueCat Offerings in violation of or inconsistent with this Agreement or the Documentation; (b) modification to the BlueCat Offerings by a party other than BlueCat or its authorized agents, which modification has resulted in the claim; (c) combination of the BlueCat Offerings with any computer program, software, hardware or equipment where the claim would not exist without such combination; (d) use of a superseded version of the Software or Ancillary Cloud Services Software where use of a then-current version would avoid the claim; or (e) access to or use of the BlueCat Offerings after BlueCat notifies Customer to discontinue such access or use.

9.3. Additional Infringement Remedies.

At BlueCat’s sole expense and discretion, in response to any pending or potential infringement claim, BlueCat may: (a) procure for Customer the right to continue using the offending BlueCat Offering or applicable portion thereof; (b) replace or modify the offending BlueCat Offering or applicable portion thereof so that it is non-infringing; or (c) terminate this Agreement either entirely or only as it relates to the offending BlueCat Offering in question or the applicable portion thereof and upon return of the BlueCat Offering in question or the applicable portion thereof or certification of destruction, refund the pro rata unused portion of any prepaid fees allocable to such part(s) of the BlueCat Offerings that is (are) terminated. For Software licensed on a perpetual basis, such refund shall be based on the unamortized or un-expensed portion of the purchase price allocated to that portion of the Software, based on a three-year straight line amortization.

9.4. Sole Remedy.

Sections 9.1 and 9.3 shall constitute Customer’s sole remedy from BlueCat in respect of infringement claims and demands.

9.5. Customer’s Indemnification Obligation.

At its own cost, Customer shall indemnify and defend BlueCat, its Affiliates and their licensors against any and all third party claims or demands related to (a) Customer’s or any Authorized User’s alleged or actual access to and/or use of the BlueCat Offerings; (b) Customer Data; (c) unauthorized disclosure or exposure of Personal Data belonging to or under the control or custody of Customer; or (d) breach of Customer’s obligations set out in Section 2, Section 3, or Section 4 of this Agreement. The foregoing indemnification obligations apply provided that (i) BlueCat has promptly notified Customer of such claim and Customer is not prejudiced by any delay by BlueCat; (ii) Customer shall have full control over the defense of the claim, provided that any settlement or resolution entered into by Customer shall not require any admission of liability or any payment by BlueCat; (iii) BlueCat has not made any admission against Customer’s interests or has not agreed to any settlement of any claim or demand without Customer’s consent; and (iv) BlueCat shall cooperate with Customer in the defense of the claim, at Customer’s expense.

10. Liability, Limitations and Exclusions

10.1. Limitations.

THE TOTAL AGGREGATE LIABILITY OF BLUECAT AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, LICENSORS, AND SUBCONTRACTORS TO CUSTOMER WILL NOT EXCEED THE TOTAL OF ALL AMOUNTS PAID TO BLUECAT IN RELATION TO THE APPLICABLE BLUECAT OFFERING IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM; PROVIDED, THAT THE TOTAL AGGREGATE LIABILITY OF BLUECAT AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, LICENSORS AND SUBCONTRACTORS TO CUSTOMER FOR DAMAGES ARISING FROM BLUECAT’S BREACH OF SECTION 3.3 OR OTHERWISE OF ANY SECURITY, PRIVACY OR DATA PROTECTION OBLIGATIONS WILL NOT EXCEED THREE (3) TIMES THE TOTAL OF ALL AMOUNTS PAID TO BLUECAT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM UP TO A TOTAL AGGREGATE MAXIMUM OF ONE MILLION DOLLARS ($1,000,000) (THE “SECURITY CAP”). FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THESE MAXIMUM LIABILITY AMOUNTS AND CUSTOMER MAY NOT SEEK RECOURSE AGAINST BLUECAT BOTH UNDER THIS AGREEMENT AND THROUGH THE APPLICABLE RESELLER.

10.2. Exclusions.

IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY OF THE FOLLOWING ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT: (A) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, AGGRAVATED, EXEMPLARY OR PUNITIVE DAMAGES; (B) ANY LOST SALES, SAVINGS, REVENUE, PROFITS, GOODWILL, USE, DATA OR CONTENT; OR (C) BUSINESS INTERRUPTION.

10.3. Carve-Outs.

THE LIMITATIONS ON AND EXCLUSIONS FROM LIABILITY IN THIS SECTION 10 DO NOT APPLY TO (A) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS IN SECTION 7 (PROVIDED THAT THE SECURITY CAP SHALL APPLY IN THE EVENT OF BREACH OF SECTION BY BLUECAT CAUSED BY BLUECAT’S BREACH OF SECTION 3.3 OR OTHERWISE OF ANY SECURITY, PRIVACY OR DATA PROTECTION OBLIGATIONS); (B) A PARTY’S INDEMNIFICATION OBLIGATIONS FOR THIRD PARTY CLAIMS UNDER SECTIONS 9.1 AND 9.5; OR (C) A BREACH BY CUSTOMER OF ITS PAYMENT OBLIGATIONS HEREIN OR BREACH OF BLUECAT’S INTELLECTUAL PROPERTY RIGHTS.

10.4. Application.

The limitations and exclusions of liability in this Section 10 apply (A) to all causes of action, (B) whether based in contract, tort or otherwise, including, without limitation, for negligence or fundamental breach, however caused and regardless of the legal theory of liability, (C) even if any exclusive remedy provided for herein fails its essential purpose and (D) even if BlueCat is advised in advance of the damages in question or even if such damages were foreseeable.

11. Subscription Periods, Agreement Term, Termination and Suspension

11.1. Subscription Periods; Automatic Renewal.

Unless otherwise indicated in the applicable Purchase Order, Subscription Periods will automatically renew for one (1) year periods at the then current fee for the applicable BlueCat Offerings and may not be cancelled with less than sixty (60) days’ written notice prior to the expiration of the then-current Subscription Period.

11.2. Term of Agreement.

This Agreement is effective during the period commencing as of the Effective Date and expires on the date that the last Purchase Order hereunder expires or is terminated, unless this Agreement is terminated earlier in accordance with this Agreement.

11.3. Termination for Breach.

A Party may terminate this Agreement and any outstanding Purchase Order or Subscription if the other Party (a) makes a general assignment for the benefit of creditors, makes a written admission of its inability to pay its debts or obligations as they become due, has a petition in bankruptcy filed by or against it, a receiver or trustee of any of its property is appointed, is adjudged to be insolvent by any court having jurisdiction, or it is dissolved, liquidated or terminated; or (b) is in breach of any of the material provisions of this Agreement and such breach is not cured within thirty (30) days of written notice of such breach. Notwithstanding the foregoing, BlueCat may terminate this Agreement or any outstanding Purchase Order or cease providing any BlueCat Offering upon non-payment of any fees or any suspension of Cloud Services pursuant to Section 11.4 for thirty (30) days or more.

11.4. Suspension of Cloud Services.

In the event that BlueCat, acting reasonably, suspects or learns of any of the following described circumstances, then BlueCat may immediately suspend Customer’s access to and use of the Cloud Services, in addition to any other remedies BlueCat may have: (a) any breach of the material provisions of this Agreement; (b) Customer’s failure to cooperate with BlueCat’s reasonable investigation of any suspected violation of this Agreement; (c) access or manipulation of the Cloud Services without BlueCat’s consent; (d) any circumstance that requires suspension of the Cloud Services in order to protect the BlueCat Offerings, BlueCat, or its customer’s data; or (e) suspension required by law.

11.5. Termination Obligations.

Upon the earlier of termination of this Agreement, or termination or expiration of any outstanding Purchase Order or Subscription Period, Customer shall (a) delete, return or destroy all instances of Software Products, Ancillary Service Software and any Documentation and, upon request, certify to compliance with this Section 11.5(a); (b) cease to access and use the Cloud Services and any Documentation; and (c) upon request, confirm in writing compliance with Section 7.2. With respect to Cloud Services, BlueCat shall make Customer Data available to Customer for download for thirty (30) days following termination and BlueCat may destroy all Customer Data upon the expiry of such thirty (30) day period. Section 11.5(a) does not apply to Software Products licensed on a perpetual basis in the event that Customer terminates this Agreement pursuant to Section 11.3.

11.6. Survival.

Notwithstanding the termination or expiry of this Agreement, all obligations which either expressly or by their nature are to continue after the termination of this Agreement shall survive and remain in effect, including, without limitation, Sections 5.1, 5.2, 6.3, 7, 8, 9, 10, 11.5, 11.6 and 12.

12. Miscellaneous Provisions

12.1. End of Life.

BlueCat may declare BlueCat Offerings, versions, features, functionality or license types to be end of life, end of support, end of sale, deprecated or discontinued in accordance with the End-of-Life Policy available at https://care.bluecatnetworks.com.

12.2. Trial.

If BlueCat makes any BlueCat Offerings available to Customer on a trial or evaluation basis, then such trial or evaluation will be for the term notified by BlueCat and will be subject to the terms of the Evaluation Agreement available at https://bluecatnetworks.com/legal-documents/.

12.3. Monitoring.

BlueCat reserves the right to audit and monitor Customer’s use of the BlueCat Offerings and compliance with this Agreement, including the Acceptable Use Policy. During the Subscription Period and for twelve (12) months after its expiry or termination, Customer will maintain complete and accurate records of use of the BlueCat Offerings to confirm compliance with this Agreement. Upon reasonable advance notice, and no more than once per twelve (12) month period, Customer will, within 30 days from BlueCat’s notice, allow BlueCat and/or its auditors access to such records and any applicable books, systems, Software Product, Ancillary Service Software and accounts during Customer’s normal business hours.

12.4. Orders through Resellers.

Section 5 shall not apply to orders placed through a reseller. All other terms and conditions in this Agreement shall apply to orders placed through a reseller.

12.5. Assignment; Subcontractors.

Without the prior written consent of BlueCat, Customer may not assign this Agreement or any of its rights or obligations hereunder, except to an Affiliate and provided such Affiliate agrees to be bound by the terms of this Agreement and Customer remains responsible for Affiliate’s compliance with this Agreement, including payment of all fees. BlueCat may use subcontractors to perform its obligations under this Agreement provided BlueCat shall remain responsible for the performance of its subcontractors.

12.6. Press Releases, Marketing.

BlueCat may refer to Customer and use its logo for the limited purpose of identifying it as a customer in sales and marketing materials.

12.7. Entire Agreement, Amendment and Headings.

This Agreement contains the entire understanding of the Parties hereto on the subject matter hereof and supersedes any previous agreements or understandings, written or oral, in effect between the Parties relating to the subject matter hereof. No amendment or modification of this Agreement shall be effective or binding unless agreed to in writing by both Parties. Headings used in this Agreement are for convenience of reference only, and shall not be used to modify the meaning of or to interpret the terms and conditions of this Agreement.

12.8. Waiver, Severability.

The waiver of any breach of this Agreement, or the failure of a Party to exercise or enforce any right under this Agreement, shall in no event constitute a waiver of any other breach, whether similar or dissimilar in nature, or prevent the exercise or enforcement of any right under this Agreement. If any provision of this Agreement is deemed contrary to applicable law or unenforceable by a court of competent jurisdiction, the remaining terms and conditions of this Agreement shall be unimpaired and the Parties shall substitute a valid, legal and enforceable provision as close in legal and economic consequence as possible to the provision being struck or considered unenforceable. If the limitation of liability set forth in this Agreement is limited by law, then BlueCat’s liability will be limited to the greatest extent permitted by law.

12.9. Rights and Remedies.

Except as expressly set out in this Agreement, in the event of any breach of this Agreement, the rights and remedies of the Parties provided for in this Agreement shall not be exclusive or exhaustive, and are in addition to any other rights and remedies available at law or in equity. The Parties agree that in the event of any breach or threatened breach of the material provisions of this Agreement by Customer, money damages would be an inadequate remedy and the affected Party shall be entitled to seek injunctive relief, without the need to post a bond or other security.

12.10. No Third Party Beneficiaries.

Nothing in this Agreement is intended to confer on any party other than BlueCat, Customer and their permitted assigns any benefits, rights or remedies.

12.11. Notices.

Any notice required or otherwise provided for in this Agreement shall be given to BlueCat or Customer, as the case may be, at the physical or e-mail address set forth on the signature page of this Agreement, or as updated from time to time pursuant to a notice provided pursuant to this Section, with a copy to any individuals with whom the Parties typically communicate.

12.12. Force Majeure.

Except for payment and confidentiality obligations, neither Party shall be liable for any delay or failure to perform its obligations in this Agreement attributable to circumstances beyond its reasonable control, such as acts of God, fire, natural disaster, terrorism, labor stoppage, internet service provider failures or delays, civil unrest, war or military hostilities, or criminal acts of third parties.

12.13. Export Controls.

Customer acknowledges and agrees that the BlueCat Offerings are subject to export controls under U.S., Canadian and other export control laws. Customer shall not directly or indirectly, whether to an Affiliate or a third party: (a) export, re-export, transfer, or release (herein referred to as “export”) any component of the BlueCat Offering to any prohibited or restricted destination, person, or entity, or (b) access or use or allow any Authorized User, Affiliate or third party to access or use the BlueCat Offerings in a manner prohibited or restricted by export control laws. Customer shall comply with all applicable export controls laws at all times.

12.14. US Federal and State Government Customers.

The BlueCat Offerings are each a “commercial item” as that term is defined in Federal Acquisition Regulation (“FAR”) 2.101, consisting of “technical data”, “commercial computer software”, “commercial computer software documentation” and/or “commercial services” as such terms are defined in FAR 2.101 or used in FAR 12.211 and 12.212, and is provided to the U.S. Government only as a commercial end item. Government end users acquire only the rights set out in this Agreement for the BlueCat Offerings. Any further use, modification, reproduction, release, performance, display, disclosure, decompiling, or reverse engineering of any of the BlueCat Offerings is prohibited except to the extent expressly permitted by the terms of this Agreement. To the extent allowed by applicable law, this US Government end user provision is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses U.S. Government rights in computer software or technical data. Terms and conditions herein that are prohibited by federal law or procurement regulation are not enforceable against the U.S. government.

12.15. Governing Law.

Regardless of the place of execution or performance or the domicile of the Parties, if Customer is a U.S. incorporated entity, then this Agreement is governed by the laws of New York excepting its choice of law provisions, and the Parties hereby agree to irrevocably attorn to the non-exclusive jurisdiction of the courts of the State of New York and the venue of Buffalo. If Customer is not a U.S. incorporated entity, but is incorporated in a member state of the European Union, then this Agreement is governed by the laws of England and Wales excepting its choice of law provisions and the Parties hereby agree to irrevocably attorn to the non-exclusive jurisdiction of the courts of England. If Customer is not a U.S. incorporated entity, and is not incorporated in a member state of the European Union, then this Agreement is governed by the laws of the Province of Ontario excepting its choice of law provisions and the Parties hereby agree to irrevocably attorn to the non-exclusive jurisdiction of the courts of the Province of Ontario and the venue of Toronto. The rights and obligations of the Parties under this Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods. The Uniform Computer Information Transactions Act, or any version adopted by any state, does not apply to this Agreement.

12.16. Headings.

Headings used in this Agreement are for convenience of reference only, and shall not be used to modify the meaning of or to interpret the terms and conditions of this Agreement.

12.17. Counterparts; Delivery by E-mail.

This Agreement may be executed in two or more counterparts each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. Delivery of an executed copy of this Agreement by e-mail transmission will constitute valid and effective delivery of an original executed copy.