Enso Software License And Services Agreement

THIS SOFTWARE LICENSE AND SERVICES AGREEMENT ("Agreement") is by and between Enso International, Inc., ("Enso"), and the organization on whose behalf you are agreeing to this Agreement, as set forth on the Order or the SOW ("Customer"). This Agreement governs Customer's purchase, license and use of the Software and SaaS Services (collectively, the "Product") and other Services.

No terms, provisions or conditions of any purchase order, acknowledgement or other business form that Customer may use in connection with this Agreement will have any effect on the rights, duties or obligations of the parties under this Agreement, or otherwise modify this Agreement, regardless of any failure of Enso to object to such terms, provisions, or conditions. Any purchase order or similar document from Customer will be for billing reference only.

Unless otherwise specified, all capitalized terms used in this Agreement have the meanings set forth on Exhibit A.

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. SOFTWARE LICENSE GRANT AND PROVISION OF SAAS SERVICES

1.1 License Grant. Subject to the terms and conditions of this Agreement, Enso grants Customer a non-exclusive, limited, revocable, non-transferable and non-sublicenseable license to use the Software only: (a) during the applicable Subscription Term, (b) internally for Customer's own internal business purposes, and not for resale or license to third parties, (c) by the authorized number of Users, (d) subject to any additional applicable Usage Allowances, and (e) in accordance with any additional Software rights and limitations specified in the Order.

1.2 SaaS Services. Subject to the terms and conditions of this Agreement, Enso will make available to Customer the SaaS Services for use only in conjunction with the Software on a non-exclusive, limited, revocable, non-transferable and non-sublicenseable basis only: (a) during the applicable Subscription Term, (b) internally for Customer's own internal purposes, and not for resale or license to third parties, (c) by the authorized number of Users, (d) subject to any additional applicable Usage Allowances, and (e) in accordance with the additional SaaS Services rights and limitations specified in the Order.

1.3 Product Trial . If Customer commences a Product Trial, then Enso will make the applicable Product available to Customer on a trial basis until the earlier of (a) the end of the Trial Period , (b) the start date of any Subscription Term for Product subscriptions ordered by Customer, or (c) termination of the Product Trial by Enso in its sole discretion. Additional Product Trial terms and conditions may be included in the Trial Order. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, DURING THE TRIAL THE PRODUCT IS PROVIDED "AS-IS" WITHOUT ANY WARRANTY.

1.4 Restrictions. Customer will not directly or indirectly, nor authorize any of its Representatives or any third party to, do any of the following: (a) use or access any Product for which Customer has not paid the applicable fees, regardless of whether such Product is accessible by Customer; (b) copy, modify or create derivative works of the Product; (c) publish, sublicense, sell, resell, rent, lease, market or distribute the Product, including using on a service bureau, outsourcing or time sharing basis; (d) reverse engineer, decompile, disassemble or otherwise attempt to gain access to the source code form of the Product; (e) use the Product or associated Documentation in violation of any applicable law, including export laws; (f) remove any proprietary notices from the Product, Documentation or any other Enso materials furnished or made available hereunder; (g) use or access the Product in order to (i) build a competitive product or service, or (ii) copy any features, functions or graphics of the Product; (h) make the Product available to anyone other than Users; (i) interfere with or disrupt the integrity or performance of the SaaS Services or any data contained therein; (j) attempt to gain unauthorized access to the Enso Platform or its related data, systems or networks; (k) use the Product to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third party privacy rights; (l) publish or disclose to third parties any evaluation of the Product without Enso's prior written consent; (m) publish or disclose to third parties any data or information on Customer's results from using the Product, without Enso's prior written consent; or (n) perform vulnerability, load or any other test of the Enso Platform without Enso's prior written consent. Customer is responsible for compliance by each User with the terms of this Agreement.

1.5 No Other Rights. Except as expressly set forth in this Agreement, no additional rights are granted to Customer. Enso hereby reserves all rights not expressly granted to Customer under this Agreement. Enso and its Affiliates retain ownership of all right, title and interest, including all related Intellectual Property Rights, in and to the Product and Services.

2. AFFILIATES; ACCOUNTS; ACCESS AND DELIVERY

2.1 Affiliates. Customer may allow its Affiliates to use the Product made available to Customer hereunder for the benefit of Customer and its Affiliates, provided that Customer will be responsible for the acts and omissions of its Affiliates as if such acts and omissions were those of Customer. Customer Affiliates may also order Products under this Agreement by either of the following methods: (a) pursuant to an Order executed by Customer and Enso, in which case Customer will be responsible for such Affiliate's compliance with the terms and conditions of this Agreement, including payment obligations, or (b) pursuant to an Order executed by such Affiliate and Enso under which such Affiliate agrees to the terms and conditions of this Agreement and will be "Customer" for all purposes under this Agreement with respect to such Order only. With respect to any such Order signed by an Affiliate, the relevant Affiliate will be solely liable for its own compliance with the terms and conditions of this Agreement, including payment obligations.

2.2 Accounts. In order to use the Product, Customer and each User must create an account ("Account"). Customer will (a) provide accurate and complete Account and login information, and keep such information current, (b) keep, and ensure that Users keep, all Account login details and passwords secure at all times, (c) remain solely responsible and liable for the activity that occurs in connection with Customer's Account, and the activities of Users on or relating to the Product, whether or not Customer knows of such activity, and (d) promptly notify Enso in writing if Customer becomes aware of any unauthorized access or use of Customer's Account or the Product. Customer is responsible for obtaining and maintaining any hardware, software and network infrastructure ("Customer Equipment") and any ancillary services needed to connect to, access or otherwise use the Product, and ensuring that the Customer Equipment and ancillary services comply with the configuration requirements specified by Enso, and all costs and fees associated therewith.

2.3 Delivery; Installation. Software licensed for installation on Customer's premises will be delivered to Customer electronically, and Customer is responsible for installing the Software, including configuration and settings, unless Customer has engaged Enso to provide or assist with implementation. Customer will conduct tests of the Software upon its installation at Customer's premises. All testing will be conducted within a period of 30 days in accordance with configuration verification tests provided by Enso. The Product will be deemed delivered to Customer upon notice of availability for download or access and login instructions, which will include email notices to a Customer designated contact or other Customer representative. Enso will not provide any media or hard copy Documentation to Customer.

3. SUPPORT SERVICES; PROFESSIONAL SERVICES

3.1 Support Services. Enso and its Affiliates will provide Support Services for the Software and/or SaaS Services, as applicable (a) for the duration of the Subscription Term, and (b) to the extent and for the time period that Customer pays the associated fees without interruption. Enso reserves the right, in its sole discretion, to modify, discontinue, add, adapt, or otherwise change its Support Services, but will not take any such action during a Subscription Term that would materially reduce or degrade the applicable Support Services. Support Services will terminate upon expiration or termination of the Subscription Term or upon Customer's failure to pay applicable fees for such Support Services.

3.2 Professional Services. Enso and its Affiliates will provide the Professional Services identified in the Order or set forth in a Statement of Work. Professional Services fees will be specified in the Order or the SOW. All SOWs will incorporate and be subject to the terms of this Agreement. Customer acknowledges that the provision of Professional Services by Enso is dependent on Customer providing reasonable access to relevant resources, IT infrastructure, data and providing timely decisions and input in connection with those Professional Services.

3.3 Subcontractors. Enso reserves the right to engage subcontractors to perform its obligations under this Agreement.

4. PRICES AND PAYMENT; TAXES

4.1 Fees and Expenses. Customer will pay all fees specified in each Order and SOW and any applicable additional fees if Customer exceeds the allotted capacity, use or access rights, or other applicable Usage allowances specified in the Order. Except as otherwise specified herein or in an Order or SOW (a) fees are payable in United States dollars, (b) fees are based on Product purchased, whether or not Customer uses the Product purchased, (c) payment obligations are non-cancellable and fees paid are non-refundable, (d) all Product will be deemed accepted upon delivery, and (e) the SaaS Services and Software Usage Allowances purchased cannot be decreased during the relevant Subscription Term. Customer will reimburse Enso for any expenses specified in the Order, SOW or otherwise authorized by Customer in writing (including via email). All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding. Unless otherwise specified in the Order or invoice, all payments by Customer to Enso under this Agreement are due and payable within 30 calendar days of the invoice date.

4.2 Past Due Invoices. If any payment is not made when due, interest will begin to accrue and be payable at the lesser of the maximum rate permitted under applicable law or 1.5% per month, accrued from the date due until paid in full. If any amount owed by Customer under this Agreement or any other agreement between the parties is 10 days or more overdue, Enso may, without limiting Enso's other rights and remedies, accelerate Customer's unpaid fee obligations under this Agreement and the other agreements so that all such obligations become immediately due and payable, and suspend SaaS Services and Support Services until such amounts are paid in full. Enso will not exercise the foregoing rights if the applicable fees are under reasonable and good faith dispute and Customer is cooperating diligently to resolve the issue.

4.3 Taxes. Customer is solely responsible for the payment of, and will pay when due, all applicable Taxes now in force, enacted or imposed in the future arising from or relating to this Agreement and the provision of products and services under this Agreement including sales, service, use or value added taxes. If for any reason Enso pays any such Taxes, Customer will reimburse Enso for such Taxes. "Taxes" means any form of taxation, levy, duty, charge, contribution or impost of whatever nature and by whatever authority imposed (including any fine, penalty, surcharge or interest), excluding any taxes based solely on the net income of Enso. If Customer is required under any applicable law or regulation, domestic or foreign, to withhold or deduct any portion of the payments due to Enso, then the sum payable to Enso will be increased by the amount necessary so that Enso receives an amount equal to the sum it would have received had Customer made no withholdings or deductions.

4.4 Right to Audit.  Enso will have the right, not more than once every 12 months during the term of this Agreement and for two years thereafter, to perform an audit at Customer's facilities insofar as may be necessary or desirable, in Enso's judgment, to determine Customer's compliance with its rights and obligations under this Agreement. Enso and Enso's independent auditors will have access to Customer's books and records, and operations at reasonable times during normal business hours, with reasonable prior written notice and Customer agrees to cooperate in all respects necessary to enable Enso and its independent auditors to carry out the intent and purposes of this Section. Enso may notify Customer of any deficiencies in performance discovered in any such audit, which deficiencies will be promptly corrected by Customer including Customer's payment of applicable fees for exceeding any Usage Allowance or for using or accessing any SaaS Services for which Customer has not paid the applicable fees, regardless of whether such SaaS Services are accessible by Customer. All information disclosed to such third party auditor or otherwise observed or learned by such third party auditor will be deemed Customer's Confidential Information (defined below).

5. SECURITY AND DATA PRIVACY

5.1 Security and Internal Controls. Enso will: (a) maintain a security framework of policies, procedures and controls that includes administrative, physical and technical safeguards for the protection of the security and integrity of the SaaS Services, and of the Customer Data contained within the SaaS Services, using the capabilities of currently available technologies and in accordance with prevailing industry practices and standards, (b) access and use the Customer Data solely to perform its obligations in accordance with the terms of this Agreement and or as otherwise expressly permitted in this Agreement, and (c) perform periodic testing by independent third party audit organizations.

5.2 Data Protection and Privacy. In performing the SaaS Services, Enso will comply with Enso's Data Processing Addendum ("DPA") located at https://www.ensoanalytics.com/DPA and incorporated herein by reference. The DPA is subject to change at Enso's discretion in order to comply with applicable law. Where Customer's use of the SaaS Services includes the processing of Customer Data by Enso that are subject to the General Data Protection Regulation (EU) 2016/679, or the UK supplemental regulations, such data processing by Enso as data processor complies with the requirements of the aforementioned regulation and applicable Standard Contractual Clauses shall be deemed mutually executed and in effect between the parties. Enso will process personal data on behalf of and in accordance with Customer's instructions consistent with this Agreement, as necessary to provide the Product, and in accordance with the DPA. Each of the parties, whose employee or contractor identification data and contact addresses are included in this Agreement or provided in the course of providing and receiving SaaS Services, Support Services or other Services hereunder , acting independently as controllers, will process the personal data contained in this Agreement and related to the individuals acting on behalf of the other party or on their own behalf in accordance with law, and have the rights to provide the personal data of such individuals to the other party.

5.3 Data Center Region. Customer may select the geographic region in which the Customer Data is housed ("Data Center Region") from those available for the SaaS Services. Enso will not move the selected Data Center Region without Customer's written consent or unless required to comply with the law or requests of a governmental or regulatory body (including subpoenas or court orders). Customer consents to Enso's collection, use and disclosure of information associated with the SaaS Services to the processing of Customer Data in, and transfer of Customer Data into, the Data Center Region Customer selects.

5.4 Cloud Provider. As of the Effective Date, Amazon Web Services hosts the SaaS Services. Enso will provide Customer with 60 days advance notice of any change in the cloud hosting provider.

5.5 Data Storage, Security, and Backup.

5.5.1 Customer Data uploaded into the SaaS Services is backed up at the frequency and for the duration specified by Enso for the particular Product, as set forth in the Product documentation. EXCEPT FOR ENSO'S SECURITY OBLIGATIONS, ENSO HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA UPLOADED TO OR CREATED IN THE SAAS SERVICES.

5.5.2 Enso will be responsible for the security of Customer Data as processed by the SaaS Services and solely in connection with Customer's proper and authorized use of the SaaS Services in accordance with the terms of this Agreement, except that Enso's obligations with respect to the storage and security of Customer Data are limited to Enso's responsibilities described in the AWS Shared Responsibility Model at https://aws.amazon.com/compliance/shared-responsibility-model/.

5.6 Compliance with Law. Enso will comply with all laws applicable to the provision of the Product.

5.7 Temporary Limitation of Access and Use Rights. Enso may temporarily limit Customer's or any User's right to access or use the SaaS Services upon notice to Customer (which will be reasonable prior notice unless Enso reasonably believes immediate limitation is necessary) if Enso reasonably determines that (a) there is a threat or attack on any of the SaaS Services, or (b) Customer's or a User's use of the SaaS Services violates Enso's Acceptable Use Policy, poses a security risk or threat to the function of the SaaS Services, or poses a security or liability risk or threat to Enso, its Affiliates or any third party. Enso will restore Customer's access and use rights promptly after Customer has resolved the issue giving rise to the limitation. Customer remains responsible for all fees and charges for the SaaS Services during the period of limitation.

6. CUSTOMER DATA AND OBLIGATIONS

6.1 Customer Ownership. Customer is and will remain the sole and exclusive owner of all right, title and interest to all Customer Data, including any Intellectual Property Rights therein. Customer hereby grants Enso all necessary rights to host, use, process, store, display and transmit Customer Data solely as necessary for Enso to provide the Product in accordance with this Agreement. Customer represents and warrants to Enso that Customer is the owner or the licensee of all IP Rights in and to the Customer Data.

6.2 Responsibilities. Customer will (a) access and use the Product in accordance with this Agreement, applicable laws, rules, and regulations and Enso's Acceptable Use Policy published at  https://www.ensoanalytics.com/AUP and incorporated herein by reference, and (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Product and notify Enso promptly of any such unauthorized access or use.

6.3 Customer Data. Customer will ensure that all Customer Data is at all times compliant with this Agreement, Customer's privacy policies, and all applicable laws and regulations and conventions. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants that Customer has sufficient rights in the Customer Data to grant the rights granted to Enso hereunder and that the Customer Data does not infringe or violate the intellectual property, publicity, privacy or other rights of any third party.

6.4 HIPAA Data. Customer agrees not to upload to SaaS Services or provide to Enso any HIPAA Data unless Customer has entered into a BAA with Enso. Unless a BAA is in place, Enso will have no liability under this Agreement for HIPAA Data, notwithstanding anything to the contrary in this Agreement or in HIPAA or any similar federal or state laws, rules or regulations.

7. WARRANTIES; DISCLAIMER

7.1 Enso Warranty for Software and SaaS Services. Enso warrants to Customer that the Product will perform materially in accordance with the applicable Documentation during the Subscription Term. In the event of breach of the foregoing warranty, as Customer's exclusive remedy and Enso's sole liability and obligation, Enso will use commercially reasonable efforts to correct the Product, at no additional charge, or if the foregoing remedy is not commercially practicable, Enso shall terminate the applicable Order and access to the SaaS Service upon written notice, Customer shall cease use of the Software, and Enso will refund to Customer any pre-paid fees paid by Customer with respect to the unexpired portion of the current Subscription Term for the non-conforming Product.

7.2 Enso Warranty for Professional Services. Enso warrants to Customer that Enso will perform the Professional Services in a competent and professional manner consistent with generally accepted industry standards. In the event of breach of the foregoing warranty, as Customer's exclusive remedy and Enso's sole liability and obligation, Enso will use commercially reasonable efforts to correct the Professional Services, at the mutually agreed hourly rate if applicable, or if the foregoing remedy is not commercially practicable, Enso may, in its sole discretion, terminate the applicable Order or SOW upon written notice and refund to Customer any pre-paid fees paid by Customer for the portion of Professional Services giving rise to the non-conformance. Customer must report any deficiencies in the Professional Services to Enso during the provision of the Professional Services or within 30 days of the completion or sign-off of the Professional Services in order to receive such remedy.

7.3 Limitation of Warranties.

7.3.1 EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, ENSO MAKES NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND ENSO SPECIFICALLY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES AND CONDITIONS, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. ENSO DOES NOT WARRANT THAT THE ENSO PRODUCTS AND SERVICES WILL MEET CUSTOMER'S NEEDS OR REQUIREMENTS OR THAT THE PROVISION OF THE ENSO PRODUCTS AND SERVICES WILL BE UNINTERRUPTED OR THAT THE ENSO PRODUCTS AND SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR ERROR-FREE. FURTHER, ENSO DOES NOT WARRANT THAT ALL ERRORS IN THE ENSO PRODUCTS AND SERVICES ARE CORRECTABLE OR WILL BE CORRECTED. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

8. CONFIDENTIALITY

8.1 Confidential Information. Each party acknowledges on its own behalf, that during the term of this Agreement it ("Receiving Party") may receive from or on behalf of the other party ("Disclosing Party") nonpublic information, including business, financial, and technical information reasonably considered by the Disclosing Party to be valuable and proprietary ("Confidential Information"). Confidential Information also includes the terms and conditions of this Agreement and may include proprietary or confidential information of third parties that have disclosed such information to the Disclosing Party in the course of its business. Confidential Information will not include information that the Receiving Party can prove: (a) was previously rightfully in the Receiving Party's possession (in written or other recorded form) with no obligation to maintain confidentiality; (b) was developed by or for Receiving Party independently of, and without use of or reference to, Disclosing Party's Confidential Information; (c) was received from a third party who is not prohibited from disclosing the information to the Receiving Party by a contractual, legal or fiduciary obligation; or (d) is or became available to and widely known by the public as to be reasonably regarded as public information without breach of this Agreement by the Receiving Party.

8.2 Use and Nondisclosure Obligations. During the term of this Agreement and after its termination, the Receiving Party will: (a) hold the Disclosing Party's Confidential Information in confidence and use the same degree of care to protect the Disclosing Party's Confidential Information as it uses for its own Confidential Information of like importance, but in no event using less than a reasonable standard of care; (b) not divulge any such Confidential Information of the Disclosing Party or any information derived therefrom to any third person except to Receiving Party's Representatives as authorized hereunder; (c) not make any use of the Disclosing Party's Confidential Information except to carry out its rights and obligations under this Agreement; and (d) not copy the Disclosing Party's Confidential Information (except as necessary to carry out its rights and obligations under this Agreement). Any Representative of Receiving Party given access to the Disclosing Party's Confidential Information must have a legitimate "need to know" and must have agreed, either as a condition of employment, representation or in a written agreement in order to obtain the Disclosing Party's Confidential Information, to be bound by terms and conditions no less protective of the Disclosing Party than this Section 8. The Receiving Party will be liable for any of its Representatives' failure to comply with such obligation. If the Receiving Party suffers any unauthorized disclosure, loss of, or inability to account for Disclosing Party's Confidential Information, the Receiving Party will promptly notify and cooperate with the Disclosing Party and take such actions as may be necessary or reasonably requested by the Disclosing Party to minimize the damage. "Representatives" means, with respect to a party, such party's employees, directors, officers, advisors, consultants, subcontractors or other agents or representatives.

8.3 Authorized Disclosures. The Receiving Party may disclose the Disclosing Party's Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body. To the extent not prohibited by law, the Receiving Party will give reasonable notice to the Disclosing Party to allow the Disclosing Party to contest such order or requirement or seek confidentiality treatment. Each party may disclose the terms and conditions of this Agreement: (a) on a confidential basis to legal or financial advisors; (b) pursuant to reports, applications or similar filings submitted to regulatory agencies and governing authorities as required by applicable law; or (c) on a confidential basis in connection with any financing transaction or due diligence inquiry.

9. INDEMNIFICATION

9.1 Enso Obligations. Enso will defend, indemnify and hold harmless Customer and its Affiliates from and against any liability, claim, damage, cost or expense (including reasonable attorneys' fees) awarded against Customer or agreed upon by Enso in settlement to the extent arising out of or resulting from a claim by a third party that Customer's permitted use of the Product infringes or misappropriates any copyright, trade secret or any patent of a third party issued in the U.S., Canada, the European Union and/or Australia.

9.1.1 If a claim under this Section 9.1 is brought or threatened, or Enso believes is likely to occur, Enso may, at its option, (a) procure for Customer the right to use the Product, or (b) replace the Product with non-infringing products or services that are functionally equivalent in all material respects, or (c) if options (a) and/or (b) above cannot be accomplished despite Enso's commercially reasonable efforts, then Enso may terminate this Agreement with respect to such Product, as applicable, and upon return or cessation of use of the Product, as applicable, issue a pro-rata refund or credit to Customer for any prepaid fees corresponding to the remaining Subscription Term of the Product, as applicable, after the date of termination.

9.1.2 Enso will have no liability under this Agreement or otherwise to the extent a claim is based upon (a) Enso's compliance with a Customer-provided specification or instruction, (b) any infringement arising out of the use of the Product in combination with other hardware, equipment, software or materials not furnished by Enso (if such infringement would not have occurred but for such combined use), (c) use of the Product in violation of the applicable Documentation, (d) any patent, copyright or trade secret in which the Customer, or its Affiliate has a direct or indirect interest, (e) modification or alteration of the Product not made by or for Enso, if infringement would have been avoided by the absence of the modifications, (f) Enso's use of any Customer Data or any other Customer-provided material in accordance with this Agreement, (g) use of any version other than a current release of the Product, if infringement would have been avoided by use of a current release made available to Customer at no additional cost, (h) Customer's continuing such allegedly infringing activity after being informed by Enso and provided, at no additional charge, with modifications that would have avoided the alleged infringement and reasonable time to implement such modifications; (i) Customer's use of the Product in breach of this Agreement; or (j) Customer's use of the Product after the then-current Subscription Term.

9.1.3 This Section 9.1 contains and limits the entire liability and obligations of Enso for Intellectual Property Rights infringements by the Product.

9.2 Customer Obligations. Customer will defend, indemnify and hold harmless Enso and its Affiliates from and against any liability, claim, damage, cost or expense (including reasonable attorneys' fees) awarded against Enso or agreed upon by Customer in settlement to the extent arising out of or resulting from a claim by a third party that Customer Data, or the use, storage, processing or display of Customer Data or any other materials provided by Customer hereunder by Enso as authorized by Customer hereunder, violates applicable law or a third party's rights.

9.3 Indemnity Process. The party seeking to be indemnified will give prompt written notice to the other party of the claim against which it seeks to be indemnified and will provide the indemnifying party, at the indemnifying party's expense, with the assistance reasonably necessary for the defense and settlement of the claim. The failure by the indemnified party to timely furnish to the indemnifying party any notice required to be furnished under this Section 9 will not relieve the indemnifying party of its obligations under this Section 9, except to the extent such failure materially and adversely prejudices the ability of the indemnifying party to defend such claim. The indemnifying party will have sole control of the defense and settlement of any such claim. The indemnifying party will not be liable for any settlement of an action effected without its written consent (which consent will not be unreasonably withheld or delayed), nor will the indemnified party settle any such action without the written consent of the indemnifying party (which consent will not be unreasonably withheld or delayed). The indemnifying party will have no right to settle any claim without the indemnified party's prior written consent, which will not be unreasonably withheld or delayed, unless the settlement unconditionally releases the indemnified party of all liability. The indemnified party may engage counsel of its choice at its own expense.

10. LIMITATION OF LIABILITY

10.1 Exclusion of Consequential Damages. EXCEPT FOR DATA PROTECTION CLAIMS AND EXCLUDED CLAIMS, IN NO EVENT WILL EITHER PARTY AND ITS AFFILIATES HAVE ANY LIABILITY TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.2 Limitation on Liability. EXCEPT FOR DATA PROTECTION CLAIMS, EXCLUDED CLAIMS, AND FEES DUE BUT UNPAID, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO ENSO UNDER THIS AGREEMENT IN THE 12 MONTHS PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO SUCH LIABILITY OCCURRED ("GENERAL LIABILITY LIMIT"). For clarity, amounts awarded to or settled with a third party under Section 9 with respect to an intellectual property infringement claim will be deemed to be direct damages under this Agreement regardless of the characterization of the damages giving rise to such award or settlement, including punitive, special, indirect, consequential or otherwise.

10.3 Exclusions to Sections 10.1 and 10.2. NOTWITHSTANDING THE LIMITATIONS SET FORTH IN SECTIONS 10.1 AND 10.2 ABOVE, EXCEPT FOR EXCLUDED CLAIMS, IN NO EVENT WILL ENSO'S AND ITS AFFILIATES' AGGREGATE LIABILIT CLAIMS EXCEED THE GREATER OF (a) THREE TIMES THE GENERAL LIABILITY LIMIT, OR (b) AMOUNTS AVAILABLE UNDER ENSO'S INSURANCE.

10.4 Disclaimer for High Risk Activities. Customer acknowledges and agree that the Product IS not fault-tolerant and are not designed or intended for use in connection with any hazardous environments or high risk applications regarding fail-safe performance, such as use in or with any medical applications, direct life support machines, safety equipment, nuclear facilities, or any application where performance or failure of the Product (either alone or in conjunction with other components or third party services) could lead directly to death, personal injury, or severe physical, property or environmental damage ("High Risk Activities"). Enso specifically disclaims any express or implied warranty, representation and condition of fitness for High Risk Activities.

10.5 The foregoing limitations in this Section 10 apply notwithstanding any failure of the essential purpose of this Agreement or any limited remedy hereunder. Multiple claims will not expand these limitations.

11. TERM AND TERMINATION

11.1 Term of Agreement. This Agreement will begin on the Effective Date and will remain in force until there are no Orders, Subscription Terms or SOWs in effect, unless terminated earlier in accordance with the terms of this Agreement.

11.2 Subscription Term. The term of each Subscription Term for a Product will begin upon the Subscription Term start date set forth in the applicable Order and will remain in force for the Subscription Term, unless terminated earlier in accordance with the terms of this Agreement. The Subscription Term will automatically renew without notice to Customer for one-year periods (each a "Renewal Term"), unless either party gives the other party written notice of its intent not to renew such Subscription Term at least 60 days before the expiration of the then-current term. Each Renewal Term will be subject to Enso's then-current policies and pricing.

11.3 SOW Term. The term of each SOW or Order for Professional Services will begin upon the effective date set forth in the applicable SOW or Order, or such other start date set forth in such SOW or Order and will remain in force until completion of the Professional Services, unless terminated earlier in accordance with the terms of this Agreement.

11.4 Termination. Each party will have the right to terminate this Agreement (including all Orders and SOWs) if the other party breaches any term of this Agreement, an Order or SOW including nonpayment, and fails to cure such breach within 30 days (10 days in the case of non-payment) after written notice thereof. Either party may terminate this Agreement (including all Orders and SOWs) immediately upon delivery of written notice if (a) the other party makes an assignment for the benefit of creditors, or (b) the other party becomes the object of the institution of voluntary or involuntary proceedings in bankruptcy or liquidation and, where such proceedings are involuntary, they remain undismissed for 60 days after their institution, or a receiver is appointed with respect to a substantial part of its assets.

11.5 Effect of Termination;. All rights granted to Customer hereunder will immediately terminate upon any termination of this Agreement. Upon termination of this Agreement, Customer will: (a) within ten business days promptly pay to Enso any and all unpaid amounts due under this Agreement, (b) within five days return or destroy, at Enso's direction, any and all Software and Enso materials, and all copies thereof, and (c) upon Enso's request certify in writing to Enso that all actions required by the preceding clause (b) have been satisfied. Further, both parties will either return or destroy any and all Confidential Information of the other party, and all copies thereof, at the direction of the owning party and provide written proof of same upon the owning party's reasonable request; provided that a party shall not be required to return or destroy copies of Confidential Information that are automatically stored or archived in any of its computer systems for back-up, disaster, legal retention, or redundancy purposes so long as the provisions of this Agreement continue to apply to such Confidential Information.

11.6 Customer Data Retrieval. Customer Data is retained for as long as the applicable Subscription Term is in effect. Customer Data enters an "expired" state when the Subscription Term expires or terminates for a reason other than Customer's breach or Customer has closed its Account. Expired Customer Data will be retained for thirty (30) days ("Customer Data Retention Period"). After the Customer Data Retention Period, Enso has the right to permanently delete Customer's Account settings and Customer Data (unless required by law to retain all or a portion of the Customer Data). Customer may retrieve Customer Data as follows:

11.6.1 If Customer voluntarily closes Customer's Account prior to expiration or termination of the Subscription Term, if Customer desires to retrieve Customer Data, Customer must download all Customer Data manually or via the API prior to closing the Account.

11.6.2 In the event Customer's access to the SaaS Services is suspended (due to a failure to pay under Section 4.2 or a breach of the AUP), then Customer must cure such failure to pay or breach of the AUP prior to being able to access Customer's Account in order to manually download any Customer Data. In the event fails to cure such failure to pay or breach of the AUP within thirty (30) days, the Customer Data Retention Period shall immediately commence.

11.6 Non-Exclusive Remedy. Except as otherwise expressly stated herein, termination of this Agreement by either party will be a nonexclusive remedy and will be without prejudice to any other right or remedy of such party. Except as otherwise expressly stated herein, the rights and remedies of the parties to this Agreement are cumulative and not alternative.

11.7 Survival. Notwithstanding any other provision of this Agreement, Sections 1.4, 1.5, 4, 7.3, 8, 9, 10, 11.5, 11.6, 11.7, 11.8 and 12, and all rights and obligations thereunder, and the exhibits, addenda and Enso policies (to the extent required to carry out the rights and obligations set forth in this Agreement), and all other terms and conditions which by their express statement are intended to survive, will survive any termination of this Agreement.

11.8 Remedies. The parties agree that money damages are not a sufficient remedy for any breach or anticipated breach of Section 1 (License Grant and Provision of SaaS Services) and Section 8 (Confidentiality) or any other provisions of this Agreement which may cause either party irreparable injury or may be inadequately compensable in monetary damages.  Accordingly, each party is entitled to specific performance, injunctive or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of proving irreparable harm or posting bond and without waiving any other remedies at law or in equity which may be available in the event of any action to enforce such provisions.

12. MISCELLANEOUS

12.1 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of the other party's employees or agents in connection with this Agreement. If a party learns of any violation of the above restriction, such party will use reasonable efforts to promptly notify the other party.

12.2 Notices. Except as otherwise specified in this Agreement, all notices required or permitted hereunder will be in writing and will be deemed to have been given upon the date of electronic confirmation of receipt of an email. Notices of breach or termination sent by email (except for a notice not to renew a Subscription Term) are not valid unless also sent and received by one of the following methods (a) personal delivery, (b) the third business day after being sent by certified mail return receipt requested, or (c) the first business day after sending by a generally recognized international guaranteed overnight delivery service. Notices to Enso will be sent to legal@ensoanalytics.com, and notices to Customer will be sent to the appropriate address and legal contact set forth in the Order or to such other person or address as either party will furnish to the other party in writing pursuant to the above.

12.3 Force Majeure. Except with respect to any payment to be made to Enso hereunder, neither party will be liable under this Agreement for any failure, deficiency or delay in the performance of its obligations under this Agreement due to any force majeure event, including natural catastrophe, fire, explosion, electrical or communication line failure, disturbance, war or military action, acts of terrorism, epidemic, pandemic, government acts, orders, or regulation, equipment failure, or any cause or matter whatsoever not within the reasonable control of such party. In the event of such a force majeure, the affected party will be entitled to a reasonable extension of time for the performance of its obligations under this Agreement. If the force majeure event continues for more than 60 calendar days, then either party may terminate the Agreement upon written notice to the other party.

12.4 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

12.5 Suggestions. Enso will have the unrestricted right to use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or Users or any other party relating to the Product.

12.6 Subscription Service Analyses. Enso may (a) compile statistical and other information related to the performance, operation and Customer's use of the Product, and (b) use, and share data from the Product environment in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes (collectively the "Service Analyses"). Service Analyses will not incorporate any information, including Customer Data, in a form that could serve to identify Customer or an individual. Enso retains all intellectual property rights in Service Analyses.

12.7 Insurance. During the term of this Agreement and until one year after the termination of this Agreement, Enso will procure, and maintain in full force and effect, the insurance coverage in the types and amounts as are reasonable and customary in the industry for comparable businesses. Upon request, Enso will provide Customer with Certificates of Insurance evidencing its then-current insurance coverage.

12.8 English Language. This Agreement is in the English language only, which language will be controlling in all respects. No translation, if any, of this Agreement into any other language for convenience or to meet local requirements will be of any force or effect in the interpretation of this Agreement or in determination of the interests of either party hereto. Furthermore, all correspondence, notices, claims, suits and other communication between the parties hereto will be written or conducted in English. It is the express wish of the parties that this Agreement and/or any related documents have been drawn up in a language other than French. French translation: Il est de la volonté expresse des parties que le présent contrat et/ou tous les documents qui s'y rattachent soient rédigés dans une langue autre que le français.

12.9 Open Source Software. The Software includes certain "Open Source Software". If Customer orders Software licenses for installation on Customer's premises (including for installation in Customer's data center or on Customer's third party service provider's cloud service), a list of the Open Source Software included in the Software, the applicable license terms, and how to obtain the Open Source Software will be provided to Customer upon written request. Any provisions in this Agreement which differ from any Open Source Software license are offered by Enso alone and not by any other party. ALL OPEN SOURCE SOFTWARE IS PROVIDED ON AN "AS IS" BASIS, AND ENSO DISCLAIMS ALL WARRANTIES WITH REGARD TO OPEN SOURCE SOFTWARE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL ENSO OR ITS LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES OR ANY OTHER DAMAGES WHATSOEVER, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE OPEN SOURCE SOFTWARE EVEN IF ENSO OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT SUCH LOSSES OR DAMAGES ARE FORESEEABLE. THIS LIMITATION WILL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM ENSO'S OR ITS LICENSORS' NEGLIGENCE TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION.

12.10 Local Laws; Compliance with Law. Customer represents and warrants that, to the best of Customer's knowledge, the provisions of this Agreement, and the rights and obligations of the parties hereunder, are enforceable under the laws of the countries within which the Product will be used. Customer and Users will use the Product in compliance with the requirements of all applicable laws. Without limiting the foregoing, Customer acknowledges that the Product and related technical data received from Enso may be subject to U.S. export and import controls, and in using the Product and related technical data Customer will comply with all applicable laws, and agrees to commit no act which, directly or indirectly, would violate any United States law, regulation or order, including tax, export and foreign exchange laws, import controls, and export controls imposed by the U.S. Export Administration Act of 1979 as amended.

12.11 U.S. Government Rights. If Customer is a U.S. federal government department or agency or contracting on behalf of such department or agency, the Software and the Documentation are each a "Commercial Item" as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Software and the Documentation are licensed to Customer with only those rights as provided under the terms and conditions of this Agreement.

12.12 Assignment. Customer may not assign or transfer this Agreement (in whole or in part) without Enso's prior written consent and any attempt to do so without such consent will be void; provided, however, Customer may assign and transfer this Agreement in whole without Enso's prior written consent to any Customer Affiliate or pursuant to a corporate reorganization, merger, acquisition or sale of all or substantially all of Customer's assets to which this Agreement relates. Enso may assign or transfer its rights and delegate its obligations (in whole or in part) under this Agreement, without Customer's consent, to an Enso Affiliate or pursuant to a corporate reorganization, merger, acquisition or sale of all or substantially all of its assets to which this Agreement relates. This Agreement is binding upon the parties and their successors and permitted assigns.

12.13 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without reference to conflict of laws principles. Each party consents to the exclusive jurisdiction of the federal and state courts of California and agree that any action, suit, proceeding or dispute relating to this Agreement will be brought only in the United States District Court or the appropriate Delaware State Court located in New Castle County, Delaware. Each party submits to the exclusive jurisdiction of these courts and agrees not to commence any legal action under or in connection with the subject matter of this Agreement in any other court or forum. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to the Agreement.

12.14 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. A waiver by a party of any provision of this Agreement in any one instance will not be deemed or construed to be a waiver of such provision for any similar instance in the future or of any subsequent breach.

12.15 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect. The parties agree to negotiate in good faith an enforceable substitute provision for any invalid or unenforceable provision that most nearly achieves the intent and economic effect of such provision.

12.16 Order of Precedence. In the event of conflict, the following order of precedence will apply: (a) the Order, (b) the terms and conditions of this Agreement, (c) the exhibits, addenda and Enso policies attached or incorporated herein by reference including data processing and information, privacy and security addenda and policies, and (d) any Statement of Work attached or incorporated by reference to this Agreement.

12.17 Customer List. Enso may include and use Customer's name, trademarks, logos and designs on a list of customers and may refer to Customer as a user of the Product in its advertising, marketing, promotional and investor materials.

12.18 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

12.19 >Modification of Agreement Terms and Conditions. From time to time, Enso may modify the terms and conditions of this Agreement (including any referenced policies and other documents), and the modified version will be effective as to Customer upon the earlier of Customer's next (a) annual anniversary date in a multi-year Subscription Term, (b) Subscription Term, or (c) Renewal Term; provided, however, that any Urgent Terms in the modified version will be effective immediately upon notice to Customer's contact or by posting in Customer's Account. An "Urgent Term" means a term that (i) addresses new functionality; (ii) is required by a third party provider of Enso, for example, with regard to infrastructure or functionality, or (iii) in the reasonable opinion of Enso's counsel, is required to comply with applicable law.

12.20 Entire Agreement. This Agreement, including the Orders, and the applicable exhibits, addenda, Statements of Work and Enso policies incorporated herein by reference, constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all previous and contemporaneous agreements and understandings, whether oral or written, between the parties with respect to the subject matter hereof. Except as otherwise provided in this Agreement, no modification, amendment, waiver, cancellation or any other change in any term or condition of this Agreement will be valid or binding on either party unless mutually assented to in writing by both parties. The term "including" and/or "includes" and the like means "including without limitation". The headings used in this Agreement are for reference only and do not change the meaning of any provision of this Agreement and will not be used in interpretation of any provision of this Agreement. This Agreement will be construed without regard to any presumption or rule requiring construction against the drafting party.

EXHIBIT A - DEFINITIONS

"Affiliate" means any entity that controls, is controlled by, or is under common control with Enso or Customer (where "control" means ownership of more than 50% of the voting equity interests in such entity or the legal power to direct or cause the direction of the general management of such entity, whether by contract or otherwise), but in each case only for so long as such ownership or control will continue.

"Enso Platform" means Enso's proprietary technology platform that powers the SaaS Services.

"Product" means, collectively, the SaaS Services, Software, Professional Services, Support Services, and all other services to be provided by Enso and its Affiliates to Customer under this Agreement.

"SaaS Services" means the Software provided and made available as software-as-a-service that is accessible through the Enso Platform.

"Software" means Enso's proprietary software product specified in the Order, in object code form, and related user documentation ("Documentation"), owned, developed or licensed by Enso, and delivered or made available to Customer by Enso under this Agreement, including any updates and upgrades thereto provided or made available to Customer by Enso under this Agreement.

"BAA" means a business associate agreement governing the parties' respective obligations with respect to any HIPAA Data uploaded to SaaS Services or provided to Enso by Customer under or in connection with this Agreement.

"Customer Data" means any information, data or content that Customer uploads or transfers to Enso or Salesforce that is used in connection with the provision of the Product under this Agreement, including Customer's Confidential Information.

"Data Protection Claims" means claims or damages arising from a party's obligations or breach of its obligations (including indemnification obligations) of confidentiality, privacy, data protection and processing, and security, including data breaches and breaches of the DPA and BAA.

"Excluded Claims" means (a) either party's indemnification obligations under Section 9, (b) Customer's breach of Section 1 of this Agreement, and/or (c) claims arising out of either party's gross negligence or intentional misconduct.

"HIPAA" means the Health Insurance Portability and Accountability Act, as amended and supplemented.

"HIPAA Data" means any patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations.

"Intellectual Property Rights" or "IP Rights" means all patents, patent applications, copyrights, mask work rights, trade secrets, trademarks, and moral rights, whether or not registered, and all applications therefor and registrations, renewals and extensions thereof, under the laws of any state, country, territory, or other jurisdiction.

"Order" means either a separate Enso order form executed by the parties for the license and purchase of Product and that incorporates by reference this Agreement or an online purchase through the Enso website for the Product pursuant to which Customer accepts the terms and conditions of this Agreement.

"Product Trial" or "Trial" means a Product that Customer evaluates for the Trial Period set forth in the Trial Order, whether as a trial, pilot, evaluation, proof of concept, or similar description.

"Professional Services" means those professional services to be performed by Enso for Customer in connection with the Software and/or SaaS Services, as more fully described in one or more Orders or Statements of Work.

"Statement of Work" or "SOW" means one or more statements of work signed by the parties from time to time referencing this Agreement, that describe the Professional Services that Enso may perform for Customer.

"Subscription Term" means the subscription duration specified in the Order during which the Software is licensed to Customer and the SaaS Services made available to Customer.

"Support Services" means the support and maintenance services and service level agreement for the SaaS Services and Software, described at https://www.ensoanalytics.com/SupportServices.

"Trial Period" means the period set forth in a Trial Order for a Product Trial.

"Usage Information" means how often a User opens the Software, the number of times a User opens a workflow in the Software, which Software components are being uses as part of a User's workflows, the number of records that a User runs in each workflow, and the sources and destinations of the Customer Data in use.

"User Account Information" means the following User information: name, phone number(s), work mailing address, e-mail address, and role (e.g. admin, developer, release manager).

"Users" means the individuals who are designated by Customer to access and use the SaaS Services or Software, as applicable, under this Agreement solely for the benefit of Customer, and for whom Customer has issued or approved access credentials. Each User must be a single identified individual using a single login with one unique email address. Customer may permanently (i.e., not for a predefined temporary period of time) replace one named User with another if the original named User no longer has access to the SaaS Services or Software, as applicable.