JASPER PIM – TERMS OF SERVICE

ACCEPTANCE.  If you are accepting these Terms on behalf of a company, organization, government, or other legal entity, you represent and warrant that (a) you are authorized to do so, (b) the entity agrees to be legally bound by the Terms, and (c) neither you nor the entity are barred from using the Services or accepting the Terms under the laws of the applicable jurisdiction.

This Agreement is between Jasper and Customer as of the Contract Signature Date. The Agreement governs Customer’s acquisition and use of certain Jasper Software Services and certain Jasper Professional Services, in each case as specified in one or more Order Forms. In this Agreement, the word “use” with respect to Customer’s use of the Software Services means “access and use”.

The Parties agree as follows:

1. DEFINITIONS; ORDER FORMS

1.1. Definitions. Capitalized terms not expressly defined in this Agreement have the meaning given to them in Schedule A.

1.2. Order Forms. All orders for Services by Customer shall be evidenced by an Order Form. Each Order Form is hereby incorporated into this Agreement by this reference. To the extent there is any conflict between the terms of this Agreement and the terms of any Order Form, the terms of this Agreement shall control.

1.3. Schedules. The following schedules are attached to and form a part of this Agreement:

Schedule A – Definitions
Schedule B – Professional Services Terms and Conditions Schedule C – Service Level Commitment
Schedule D – Acceptable Use Policy

SUBSCRIPTION PERIODS; TERM

2.1. Subscription Periods; Automatic Renewal. Unless otherwise indicated in the applicable Order Form, Subscription Periods for Software Services will automatically renew annually for periods (each, a “Renewal Subscription Period”) equal to the shorter of initial Subscription Period indicated in such Order Form or 1 year, and may not be cancelled except with at least 30 days’ notice by one Party to the other prior to the expiration of the then-current period.

2.2. Term of Agreement. The term of this Agreement shall commence on the Effective Date and shall continue until terminated in accordance with this Agreement or until the expiry or termination of all Order Forms here-under, whichever is later (“Term”).

3. PROFESSIONAL SERVICES

3.1. Professional Services. Jasper will provide Professional Services to Customer specified in an outstanding Order Form upon the terms and conditions set forth in this Agreement and in Schedule B.

4. SOFTWARE SERVICES

4.1. Software Services. Subject to the terms and conditions of this Agreement, Jasper will make available to Customer the Software Services identified in an Order Form. The Software Services ordered will only be made available for use by Customer upon Jasper’s receipt of the applicable Software Services Fees and only during the Subscription Period.

4.2. Service Levels; Support; Sole Remedy. Jasper will make the Software Services, and accompanying Support, available to the Customer in accordance with the SLC attached to this Agreement as Schedule C. The remedies listed in the SLC are Customer’s sole remedy for any failure of the Software Services or Support.

4.3. APIs. Jasper may make various APIs available via the Software Services from time to time in its discretion to support Customer’s use of the Software Services. Customer acknowledges and agrees that the APIs are made available solely to support use of the Services, and Jasper has no liability with respect to any uses of the APIs.

4.4. Modifications to Services. Jasper reserves, without liability, the right to Modify any of the Services or Jasper Materials from time-to-time. Such Modifications may affect the appearance, functionality, features, content and/or the appearance of the Services and/or other Jasper Materials. Excluding the addition of new products or services, Jasper shall make available, implement, configure, install, support, and maintain at its own cost any and all Modifications.

4.5. Discontinuance. Jasper reserves, without liability, the right at any time to discontinue, temporarily or permanently, the Services (or any part thereof) and will provide Customer with no less than ninety (90) days’ notice of any such expected discontinuances by Jasper. If the entire Services are discontinued without cause, Customer’s sole and exclusive remedy is to receive a refund equal to the prorated amount of unused Services.

4.6. Third Party Tools. Customer acknowledges and agrees that the Services inter-operate with several Third Party Tools and that the Services may be highly dependent on the availability of such Third Party Tools. If at any time any Third Party Tool ceases to be available to Jasper on reasonable terms, then Jasper may cease to provide such features to Customer (a “Tool Change”). In the event that any Tool Change has a material negative impact on the Software Services, then Customer may, within 30 days of a Tool Change, as its sole and exclusive remedy, terminate this Agreement and any applicable Order Form for the portion(s) of the Services impacted by the Tool Change, by providing Jasper with not less than 90 days’ notice of its intention to terminate. Jasper does not warrant or support Third Party Tools.

4.7. Available Third Party Products or Services. Jasper or third parties may from time to time make available to Customer, for acquisition by Customer, Available Third Party Products or Services (“Available Third Party Products or Services”) either through the Services, by way of hyperlinks, or externally (e.g. training). Any acquisition by Customer of any such Available Third Party Products or Services, and any exchange of data between Customer and any third party provider, is solely between Customer and the applicable third party provider. Jasper does not warrant or support Available Third Party Products or Services, whether or not they are designated by Jasper as “certified”, part of an authorized configuration or otherwise.

5. GENERAL SERVICES RESTRICTIONS AND OBLIGATIONS

5.1. General Customer Obligations. Customer shall (a) obtain and maintain all necessary licences, consents, and permissions necessary for Jasper, its contractors and agents to perform their obligations under this Agreement; and (b) comply with all applicable laws, rules, regulations and guidances regarding its use and receipt of the Services, Jasper Materials, Available Third Party Products or Services, Third Party Tools, and Customer Data, including copyright, privacy and export laws.

5.2. Users; Internal Use. Only Customer and its Users shall be entitled to use the Services, Jasper Materials, Available Third Party Products or Services, and Third Party Tools Customer and its Users shall use the foregoing for Customer’s internal business purposes only. Such internal business purposes do not include use by any parent, subsidiary, or Affiliate of Customer, or any other third party, and Customer shall not permit any such use, unless otherwise expressly specified in an Order Form.

5.3. Responsibility; Acceptable Use Policy. Customer shall be responsible for its, and its Users’ compliance with, and breach of, this Agreement, including the Acceptable Use Policy attached as Schedule D. Neither this Agreement or the Acceptable Use Policy requires that Jasper take any action against Customer or any User or other third party for violating the Acceptable Use Policy or this Agreement, but Jasper is free to take any such action it sees fit, in addition to any other remedies Jasper may have.

5.4. Access Methods. Customer agrees that it is responsible for protecting the security and integrity of the Access Methods. Customer agrees that it is responsible for all actions taken by its Users and is liable for any acts or omissions occurring under any Access Methods.

5.5. Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by any of Sections 5 or 6, then Customer shall, and shall cause its Users to, immediately: (a) take all reasonable and lawful measures that are necessary to stop the activity or threatened activity and to mitigate its effects; and (b) notify Jasper of any such actual or threatened activity.

5.6. Customer Systems. Customer has and will retain sole control over the operation, maintenance and management of, and all use of, the Customer Systems, and sole responsibility for all use and receipt of the Services, Jasper Materials, Available Third Party Products or Services, and Third Party Tools, by any person by or through the Customer Systems or any other means controlled by Customer or any User, including any information, instructions or materials provided by any of them to the Services or Jasper, as well as any conclusions, decisions or actions based on their use or receipt of the Services, Jasper Materials Available Third Party Products or Services, and Third Party Tools.

5.7. Cooperation. Customer shall: (i) provide Jasper personnel with such access to Customer Systems as is necessary for Jasper to perform its obligations hereunder, including such access as required by any Documentation or this Agreement; (ii) provide all cooperation and assistance as Jasper may reasonably request to enable Jasper to exercise its rights and perform its obligations under and in connection with this Agreement; (iii) promptly communicate to Jasper all changes to Customer’s Systems, and other resources, equipment, facilities and software, that impact or may impact the Services; and (iv) carry out all other Customer and User responsibilities set out in this Agreement in a timely and efficient manner. Jasper is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement.

5.8. Export. Customer acknowledges and agrees that the Services, Third Party Tools, Available Third Party Products or Services, and/or Jasper Materials may be subject to export controls under Canadian and other export control laws. Customer shall not directly or indirectly: (a) export, re-export, transfer, or release (herein referred to as “export”) any component of the Services, Third Party Tools, Available Third Party Products or Services, or Jasper Materials to any prohibited or restricted destination, person, or entity, or (b) access or use, or allow any User, Affiliate or third party to access or use, the Services, Third Party Tools, Available Third Party Products or Services, or Jasper Materials in a manner prohibited or restricted by applicable export control laws. Customer shall comply with all applicable export controls laws at all times. By using Services, Third Party Tools, Available Third Party Products or Services, or Jasper Materials, Customer represents and warrants that neither Customer or any User is located in, under control of, or a national or resident of any country to which export is prohibited or on any list maintained by the Canadian or U.S. government prohibiting making available the Services, Third Party Tools, Available Third Party Products or Services, or Jasper Materials to Customer or any User.

6. CUSTOMER DATA; PERSONAL INFORMATION; FEEDBACK

6.1. Ownership. As between the Parties, Customer owns all right, title and interest in and to the Customer Data.

6.2. License. Customer hereby grants to Jasper and its subcontractors a non-exclusive, worldwide, transferable, assignable, sublicenseable, royalty-free, fully paid-up right to use and Process (including, to host, store, copy, record, transmit, maintain and display) the Customer Data for the sole purpose of providing and making available the Services hereunder.

6.3. Customer Responsibility. Customer has sole responsibility for (a) any Customer Data; (b) any storage, backup and retrieval of Customer Data; (c) any transmission errors, corruption, or compromise of Customer Data transmitted via Distributors or other third party providers, or otherwise transmitted via the Internet; and (d) the condition, completeness, timeliness, backup, legality, reliability, integrity, accuracy and quality of Customer Data. Customer agrees that Jasper does not review, edit, substantiate, determine or otherwise have any responsibility for the accuracy, quality, integrity, legality, reliability, or appropriateness of any Customer Data.

6.4. Personal Information. Jasper acknowledges that Personal Information of Users may be included in Customer Data (“Customer Personal Information”). As between the Parties, all Customer Personal Information is the property of Customer. With respect to such Customer Personal Information, Jasper shall: (a) use the Customer Personal Information only for the purposes necessary to fulfill this Agreement and to carry-out the Services; (b) maintain the Customer Personal Information only for so long as may be required to fulfill the purposes for which the Customer Personal Information was collected, or as may be required by law, rule or regulation whichever is longer; and (c) not disclose or permit any employee, subcontractor, agent or other third parties over which Contractor exercises control, to disclose the Customer Personal Information, or any part thereof (other than to such employees, subcontractors, agents or third parties who have a need-to-know in order for Jasper to carry- out the Services).

6.5. Customer Representations, Warranties and Covenants re: Customer Data. Customer represents, warrants and covenants to Jasper that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Jasper and used and Processed by Jasper pursuant to this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, right of confidentiality, right of privacy, right of publicity or other rights of any third party or violate any applicable law, rule or regulation.

6.6. Feedback. Customer may from time to time provide Feedback. Customer shall, and hereby does, grant to Jasper a non-exclusive, worldwide, perpetual, irrevocable, transferable, assignable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose. Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Jasper.

7. SECURITY; MONITORING

7.1. Security. Jasper will use commercially reasonable administrative, physical and technical safeguards for the protection, confidentiality and integrity of the Software Services and Customer Data.

7.2. Monitoring. Customer acknowledges and agrees that Jasper may monitor and analyze the Software Services and Support for purposes of security and with respect to Customer’s compliance with this Agreement.

8. INTELLECTUAL PROPERTY OWNERSHIP

8.1. Intellectual Property Ownership. As between the Parties, all right, title and interest in and to the Services, Jasper Materials, Third Party Tools, and Available Third Party Products or Services, including all Intellectual Property Rights and other proprietary rights therein, are and will remain the sole and exclusive property of Jasper and the respective third party rights holders. This Agreement does not grant any Intellectual Property Right or license under any Intellectual Property Right in or to the Services, Jasper Materials. Third Party Tools, or Available Third Party Products or Services. Customer shall comply with all reasonable requests made by Jasper to protect the rights of Jasper and such third party rights holders in and to the Services, Jasper Materials, Third Party Tools, and Available Third Party Products or Services. Customer hereby unconditionally and irrevocably grants to Jasper an assignment of all right, title and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.

9. FEES AND PAYMENT

9.1. Fees; Payment. Customer hereby agrees to pay the Fees for the Services set out in the Order Form, plus applicable Taxes and expenses incurred by Jasper. All Fees are payable pursuant to the payment schedule specified in an Order Form; provided, however, that if an Order Form does not contain a payment schedule then all fees are payable immediately upon receipt of the applicable invoice, but no later than within 10 days of the invoice date. Payment shall be made in the manner set-out in the Order Form.

9.2. Late Payment. In the event of payment after the due date, interest shall be payable on the overdue amount(s) at an amount equal to 1.5% per month of the overdue amounts or the maximum amount permissible under applicable law. Customer will be responsible for, and Jasper entitled to recover from Customer, all costs associated with collecting any fees or other amounts due and owing to Jasper from Customer, including but not limited to any legal costs, lawyer’s fees, court costs and collection agency fees.

9.3. Taxes. In addition to the Fees, Customer shall pay all Taxes, however designated, in relation to use of the Services. If a certificate of exemption or similar document is to be used in order to exempt Customer from that liability, Customer must furnish a copy of the certificate to Jasper prior to commencement of the Term. In the event that Customer are prohibited by law from making payments to Jasper free of deductions or withholdings, Customer will pay the additional amounts to Jasper as may be necessary to ensure that the actual amount received by Jasper after deduction or withholding and after payment of any additional taxes or charges due as a consequence of the payment of the additional amounts, equals the amount that would have been received by Jasper if the deductions or withholdings were not required.

9.4. Fee Increases. Jasper may increase Fees by providing written notice to Customer at least 60 calendar days prior to the end of the then-current Subscription Period. Notwithstanding the foregoing, fees and charges related to Third Party Tools and/or Available Third Party Products or Services, and their payment terms, are subject to change.

10. CONFIDENTIALITY

10.1. Confidential Information. “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of a Disclosing Party includes information concerning the operations, affair, businesses, technology and technical information, product plans and designs, and business processes of such Party. Jasper Confidential Information includes, without limitation, any non-public information of Jasper, including trade secrets, processes, methods, ideas, algorithms, plans, software source code, technical specifications, engineering data, computer software programs, manufacturing know-how, or other information relating to, incorporated in or forming part of the Services, the Jasper Materials and any other information which would be reasonably considered to be confidential, including the terms of this Agreement.

10.2. Obligations. Each Receiving Party acknowledges and agrees that (a) the Disclosing Party owns all right, title and interest in and to all of such Disclosing Party’s Confidential Information; and (b) the Receiving Party has no right to use or retain the Confidential Information for any purpose other than to carry out its obligations pursuant to this Agreement. In addition, the Receiving Party shall (i) safeguard and protect the Confidential Information from theft, piracy or unauthorized access in a manner at least consistent with the procedures that Receiving Party uses to protect its own confidential information, but in no event less than a reasonable degree of care; (ii) ensure that any Confidential Information obtained from the Disclosing Party shall be disclosed only to the Receiving Party’s employees, contractors and agents (and, in respect of Jasper, its providers, suppliers and licensors) on a “need-to-know” basis, and that such individuals and/or entities shall be bound by an obligation of confidentiality similar to the obligations of the Parties under this Section 10; and (iii) shall be liable for any breaches of this Agreement by any person to whom it provides, or provides access to, the Receiving Party’s Confidential Information.

10.3. Exceptions.Theseconfidentialityobligationsdonotapplytoanyinformationthatis(a)alreadyknown to the Receiving Party at the time of disclosure other than through disclosure by the Disclosing Party; (b) generally available to the public at the time of, or following, disclosure through no action or inaction of Receiving Party; (c) disclosed to the Receiving Party by a third party that is known not to be prohibited by law or agreement from disclosing same; or (d) subsequently and independently developed by the Receiving Party without reference to the Confidential Information disclosed under this Agreement.

10.4. Compelled Disclosure. If Confidential Information is required to be disclosed pursuant to a requirement of a governmental authority, 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.

11. GENERAL REPRESENTATIONS AND WARRANTIES; DISCLAIMERS

11.1. General Representations and Warranties. Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power and authority to enter into his Agreement; (c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and (d) when executed and delivered , this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.

11.2. GENERAL DISCLAIMERS. EXCEPT AS EXPRESSLY SPECIFIED HEREIN, (A) CUSTOMER’S USE AND RECEIPT OF THE SERVICES, JASPER MATERIALS, THIRD PARTY TOOLS, AND AVAILABLE THIRD PARTY PRODUCTS OR SERVICES, ARE ALL AT CUSTOMER’S SOLE RISK; AND (B) THE SERVICES, JASPER MATERIALS, THIRD PARTY TOOLS, AND AVAILABLE THIRD PARTY PRODUCTS OR SERVICES ARE PROVIDED “AS IS” AND AS AVAILABLE AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THERE ARE NO REPRESENTATIONS OR WARRANTIES, CONDITIONS OR GUARANTEES, EXPRESS OR IMPLIED (WHETHER ARISING UNDER COMMON LAW, STATUTE, COURSE OF DEALING OR TRADE, OR OTHERWISE) (I) RELATING TO ANY OF THEM, INCLUDING ANY WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, QUALITY, MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT, CURRENCY, COMPLETENESS, ACCURACY, AVAILABILITY, ACCESSIBILITY, UNINTERRUPTED USE, RELIABILITY, OR SECURITY, , OR (II) THAT ANY OF THEM, OR ANY PRODUCTS OR RESULTS OF USE OR RECEIPT OF ANY OF THEM, WILL MEET ANY REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE (INCLUDING FROM HACKING OR OTHER UNAUTHORIZED INTRUSION, SUCH AS DENIAL OF SERVICE ATTACKS, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY JASPER WILL CREATE ANY REPRESENTATION, WARRANTY OR CONDITION.

12. LIABILITY

12.1. LIMITATION. IN NO EVENT WILL JASPER’S OR ITS AFFILIATES’ LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO JASPER IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT; PROVIDED, HOWEVER, THAT IN NO EVENT WILL JASPER’S OR ITS AFFILIATES’ AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT OF FEES FOR SOFTWARE SERVICES AND SUPPORT PAID IN THE INITIAL SUBSCRIPTION PERIOD OF THE INITIAL ORDER FORM HEREUNDER.

12.2. EXCLUSIONS. IN NO EVENT WILL EITHER PARTY, JASPER’S AFFILIATES, OR JASPER’S PROVIDERS, SUPPLIERS OR LICENSORS, BE LIABLE (A) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, AGGRAVATED, EXEMPLARY OR PUNITIVE DAMAGES; OR (B) FOR ANY LOSSES OR DISADVANTAGES (INCLUDING LOST GOODWILL, SALES, REVENUE, PROFITS, BUSINESS, PRODUCTION, DATA, OR CONTENT, OR ANY OTHER BUSINESS OR ECONOMIC LOSS OR DISADVANTAGE, IN ALL CASES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL) WHATSOEVER ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, JASPER SHALL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES WHATSOEVER RESULTING FROM: (I) FAILURES OF DISTRIBUTORS, THIRD PARTY TOOLS, AVAILABLE THIRD PARTY PRODUCTS OR SERVICES, THIRD PARTY PROVIDERS, ANY THIRD PARTY DATA, INFORMATION, PRODUCTS, SOFTWARE, NETWORKS SERVICES OR OTHER ITEMS OR INFRASTRUCTURE, OR OF CUSTOMER’S SYSTEMS (INCLUDING ANY FAILURE TO SECURE AND SAFEGUARD CUSTOMER’S SYSTEMS OR ACCESS METHODS); (II) PROVISION OF THE SERVICES WHICH OCCURS OUTSIDE OF THE BOUNDARY OF JASPER SYSTEMS OPERATED DIRECTLY BY JASPER (MEANING: THE POINT AT WHICH JASPER’S OWNED OR DIRECTLY MANAGED INFRASTRUCTURE MEETS EITHER: (X) THE PUBLIC INTERNET; (Y) AN INTERFACE TO A THIRD PARTY PROVIDER, SUPPLIER OR LICENSOR; OR (Z) A CONNECTIVITY SERVICE BETWEEN JASPER AND CUSTOMER, ANY CUSTOMER AFFILIATES, AND/OR ANY USERS)(III) ANY MALFEASANT OR WILFUL ACT OR OMISSION BY CUSTOMER OR OF ANY THIRD PARTY (SUCH AS, WITHOUT LIMITATION, ‘DDOS’ ATTACKS); OR (IV) UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT, LOSS, CORRUPTION OR DESTRUCTION OF ANY CUSTOMER DATA OR CONTENT;.

12.3. CARVE-OUTS. THE LIMITATIONS ON AND EXCLUSIONS FROM LIABILITY IN THIS SECTION 12 DO NOT APPLY TO LIABILITY ARISING FROM CUSTOMER’S BREACH OF ITS PAYMENT OR TAX OBLIGATIONS HEREUNDER, CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER, A PARTY’S FRAUD OR WILLFUL MISCONDUCT, OR CUSTOMER’S BREACH OF SECTION(S) 5, 6, 8 or 10 .

12.4. APPLICATION. THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS SECTION 13 APPLY (A) TO ALL CAUSES OF ACTION, (B) WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, INCLUDING FOR FUNDAMENTAL BREACH AND NEGLIGENCE, HOWEVER CAUSED AND REGARDLESS OF LEGAL THEORY, (C) EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS ITS ESSENTIAL PURPOSE, AND (D) EVEN IF A PARTY IS ADVISED IN ADVANCE OF THE DAMAGES IN QUESTION OR EVEN IF SUCH DAMAGES WERE FORESEEABLE. THE PARTIES HAVE FREELY AND OPENLY NEGOTIATED THIS AGREEMENT, INCLUDING THE PRICING, IN THE KNOWLEDGE THAT THE LIABILITY OF THE PARTIES IS TO BE LIMITED IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT.

13. INDEMNIFICATION

13.1. Customer shall, at its expense, defend and hold Jasper and its Affiliates harmless from and against any and all claims, demands, suits, actions or proceedings, and indemnify Jasper and its Affiliates from and against any liabilities, losses, damages, costs and expenses, including reasonable lawyers’ fees, suffered or incurred by Jasper, in relation to (a) Customer Data; (b) Customer’s breach of Sections 5, 6.3, 6.5, 8, 9 or 10; (c) Customer’s fraud or willful misconduct; or (d) any personal injury or damage to property.

14. TERMINATION AND SUSPENSION

14.1. Termination for Breach. A Party may terminate this Agreement 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 (and such petition is not dismissed within 30 calendar days), 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) materially breaches this Agreement and such breach is not cured within 30 days of written notice of such breach. No prepaid Fees are refundable.

14.2. Immediate Termination or Suspension of Services. In the event that Jasper, acting reasonably ,suspects or learns of any of the following described circumstances, then Jasper may immediately terminate this Agreement or suspend or disable Customer’s use and/or receipt of any Services, Third Party Tools, Available Third Party Products or Services, and/or Jasper Materials, by use of any Jasper Disabling Device(s) or any other lawful means, in addition to any other remedies Jasper may have: (a) any breach of Section(s) 5, 6, 8 or 10; (b) Customer’s failure to cooperate with Jasper’s reasonable investigation of any suspected violation of this Agreement; (c) access or manipulation of the Services without Jasper’s consent; (d) any circumstance that requires suspension of the Services in order to protect the Services, Jasper, or its Customer’s data; (e) suspension required by law or governmental authority; (f) Customer or any User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities; (g) this Agreement expires or is terminated; or (h) Customer 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 (and such petition is not dismissed within 30 calendar days), 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.

14.3. Termination Obligations. In addition to any other termination obligations hereunder, upon the earlier of termination of this Agreement, termination of any outstanding Order Form, or expiry of any Subscription Period:

(a) Customer shall immediately: (i) pay all sums owing to Jasper under the affected Order Form(s); (ii) cease using, and ensure each affected User ceases using, any terminated or expired Services, Third Party Tools, Available Third Party Products or Services, and Jasper Materials; (ii) return to Jasper, or at Jasper’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or that are based on, any Jasper Materials or other Jasper’s Confidential Information; (iii) permanently erase all Jasper Materials and other Jasper’s Confidential Information, as well as all electronic files containing, reflecting, incorporating, or that are based on Jasper Confidential Information, from all Customer Systems and other systems Customer directly or indirectly controls; and (iv) certify to Jasper in a signed written instrument that it has complied with the requirements of this Section 14.3(a);

(b) if Customer is in compliance with Section 14.3(a), then, within ten (10) days of termination or expiration of this Agreement, provide the Licensee with a copy of Customer Data in in .csv or .xml format; and

(a) notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) Jasper may retain the Customer’s Confidential Information and Jasper may retain Customer Data, in each case, in its then current state and solely to the extent and for so long as required by applicable law, rule or regulation; and (ii) Jasper may retain Customer Data in its backups, archives and disaster recovery systems until such Customer Data is deleted in the ordinary course. All information and materials described in this Section 14.3(c) will remain subject to all confidentiality requirements of this Agreement.

15. MISCELLANEOUS PROVISIONS

15.1. Force Majeure. Jasper will not be liable for any delay in performance or failure to perform due to any Force Majeure Event.

15.2. Non-Exclusive Agreement. This Agreement shall not prevent Jasper from entering into similar agreements with third parties, or from providing Services to third parties.

15.3. Independent Contractors. The Parties acknowledge and agree that they are independent contractors and will have no power, nor will either Party represent that it is has any power, to bind the other Party or to assume or to create any obligation or responsibility, express or implied, on behalf of the other Party or in the other Party’s name. This Agreement will not be construed as constituting the Parties as partners, joint venturers or agents or to create any other form of legal association that would impose liability upon one Party for the act or failure to act of the other Party.

15.4. Publicity. Customer agrees on its own behalf and on behalf of each Authorized User that Jasper may identify Customer as a customer of Jasper (using Customer’s name and logo) and describe the general nature of the relationship between Jasper and Customer, and use by Customer of Jasper’s Services, in Jasper’s promotional materials, press releases, presentations, proposals to current and prospective clients and on Jasper’s website.

15.5. Rights and Remedies. Except as expressly specified 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 Sections 5, 6.3, 6.5, 8 or 9, 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.

15.6. Assignment. Customer may not transfer (including by operation of law), assign, or otherwise dispose of this Agreement, or any of its rights or obligations under this Agreement, without Jasper’s prior written consent in each instance. The Parties agree and anticipate that Jasper may fulfill its obligations under this Agreement (either partially or completely) through the efforts of, or by contract with, third parties. Any attempted assignment in violation of this Section 15.6 will be null and void. This Agreement will enure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.

15.7. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, Canada without reference to the conflicts of law principles. This Agreement shall not be governed by the United Nations Convention of Contracts for the International Sale of Goods or the International Sale of Goods Act (Ontario), as amended, replaced or re-enacted from time to time, the application of which is hereby expressly excluded. The exclusive venue for all claims arising out of or in connection with this Agreement shall be in Toronto, Ontario, Canada, but the parties agree that Jasper may seek equitable relief in any venue it so chooses.

15.8. Actions. Customer acknowledges and agrees that any action (regardless of form) against Jasper arising out of this Agreement may be brought by Customer up to, but in no circumstances after, the 6 month anniversary of the date on which the cause of action arose, regardless of any statute or law regarding limitation periods to the contrary. Except to the extent precluded by applicable law: (a) any parties to an action brought hereunder shall be individually named, and Customer hereby waives any right it may have to litigate any such matter on a class or consolidated basis, or on bases involving disputes brought on a purported representative capacity; and (b) the Parties hereby irrevocably waive any right they may have to trial by jury.

15.9. Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the Parties and supersedes all previous agreements, promises, and representations, whether written or oral, between the Parties with respect to the subject matter hereof. This Agreement may not be modified except in a written document signed by the Parties.

15.10. Waiver; Severability. No waiver of any provision of this Agreement is binding unless it is in writing and signed by all Parties to this Agreement entitled to grant the waiver. 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 Jasper’s liability will be limited to the greatest extent permitted by law

15.11. Headings; Interpretation; Language. The section and subsection headings used in this Agreement are for reference and convenience only, and shall not affect in any way the meaning or interpretation of the Agreement. Where the word “including” or “includes” is used herein, it means “including without limitation” or “includes without limitation”, respectively. The Parties acknowledge that they have expressly required that this Agreement and all related documents be drafted in the English language. Les parties reconnaissent avoir expressément exigé que le présent convention et tous les documents connexes soient rédigés en langue anglaise.

15.12. Notices. Any and all notices required to be delivered hereunder shall be sent by email to the e-mail address set-out in the recitals to this Agreement, with a copy to any individuals with whom the Parties typically communicate (“Email Notification”), or by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to the address set out in the recitals to this Agreement, with a copy to any individuals with whom the Parties typically communicate (“Mail Notification”). Any such notification shall be deemed effective: (i) upon transmission when delivered by Email Notification; or (ii) when delivered by Mail Notification.

15.13. Counterparts; Delivery by E-mail. This Agreement may be signed in any number of counterparts with the same effect as if the parties had signed the same document. Delivery by electronic transmission in portable document format (PDF) or TIF format of this Agreement is as effective as delivery of an original of this Agreement.

15.14. Survival. Notwithstanding the termination or expiry of this Agreement, all obligations which either expressly or by their nature are to continue after the termination or expiry of this Agreement shall survive and remain in effect, including Sections 5, 6, 8, 9, 10, 11.2, 12, 13, 14.3 and 15.

SCHEDULE A DEFINITIONS

In the Agreement, the following capitalized terms have the meanings set out below:

  1. (a)  “Acceptable Use Policy” means Jasper’s acceptable use policy attached at Schedule D;
  2. (b)  “Access Methods” means the user identifiers and passwords for the Software Services used to verify a

User’s credentials to use the Software Services and Support pursuant to this Agreement;

(c) “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity;

(d) “Agreement” means the Master Services Agreement, all schedules to the Master Services Agreement, each Order Form, all amendments, and any other document incorporated by reference herein;

(e) “API” means any application program interface made available or provided by Jasper in connection with this Agreement;

(f) “Business Day” means any day which is not a Saturday, Sunday or statutory public holiday in Ontario, Canada;

(g) “Customer Data” means, other than Resultant Data, information, data and other content, in any form or medium, that is uploaded or transmitted directly or indirectly by Customer or a User to Jasper by or through the Software Services. Customer Data includes information reflecting the use of the Services by or on behalf of Customer or any User other than Resultant Data;

(h) “Customer Systems” means Customer’s and any User’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), networks, telephones, telecommunications connections, whether operated directly by Customer or any User or any third party providers or Distributors, including any User Devices;

  1. (i)  “Confidential Information” has the meaning given to it in Section 10;
  2. (j)  “Distributor” means a third party distributor or vendor over whose network or through whose services

Customer uses the Services;

(k) “Documentation” means any written specifications, manuals or instructions for the Services that Jasper specifically provides or makes available for Customer within Customer’s account, as well as the then-current general minimum Customer system requirements as published by Jasper (as may be updated from time-to-time);

(l) “Jasper Disabling Device” means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by Jasper or its designee to disable Customer’s or any User’s use of the Services automatically with the passage of time or under the positive control of Jasper or its designee;

(m) “Jasper Materials” means the Service Software, APIs, Documentation and Jasper Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any Work Product, technical or functional descriptions, requirements, plans or reports, that are provided or used by Jasper or any subcontractor or other third party provider of Jasper in connection with the Services or otherwise comprise or relate to the Services or Jasper Systems. For the avoidance of doubt, Jasper Materials include Resultant Data and any information, data or other content derived from Jasper’s monitoring of Customer’s use of the Services;

(n) “Jasper Systems” means the information technology infrastructure used by Jasper in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks;

(o) “Feedback” means suggestions, comments, or other feedback provided by Customer to Jasper with respect to the Services;

  1. (p)  “Fees” means the fees for the Services, as specified in an Order Form;
  2. (q)  “Force Majeure” means any occurrence beyond the reasonable control of Jasper or its subcontractors or

third party providers, such as, acts of God, disasters, fires, floods, earthquakes, explosions, riots, war, terrorism, sabotage, nuclear incidents, act of government, Internet or telecommunication service provider failures or delays, communication line or power failures, or failure, denial of service attack, inoperability or destruction of any computer equipment or software;

(r) “Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby. Harmful Code does not include any Jasper Disabling Device;

(s) “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;

(t) “Modifications” means any enhancements, changes, corrections, improvements, translations, adaptations, revisions, developments, new versions, upgrades or updates; and “Modify” shall mean the creation of any of the foregoing;

(u) “Order Form” means a supplemental ordering document that is in writing and executed by the Parties and that provides for the purchase of Service(s) by Customer, including any exhibits, addenda and supplements thereto;

  1. (v)  “Party” means either Jasper or Customer;
  2. (w)  “Personal Information” means information that (i) is disclosed or transferred by Customer or Users to

Jasper pursuant to this Agreement or is otherwise obtained, used in, stored, generated, or produced as the result of the use of the Software Services; and (ii) identifies an individual, such as an individual’s social security number, social insurance number, or other government issued number, date of birth, home address, telephone number, email address, credit card information, or a person’s name in combination with any other of the elements listed herein;

(x) “Process” means to take any action or perform any operation or set of operations that the Software Services and/or Support are capable of taking or performing on any data, information or other content, including to upload, download, store, manage, maintain, copy, adapt, alter, make other derivative works or improvements, process, output, display, transmit, or otherwise provide or make available. “Processing” and “Processed” have correlative meanings

(y) “Professional Services” means the customization, integration, training, consulting, development and other professional services identified from time to time in writing on a relevant Order Form, and any Modifications to such services, but does not include Software Services or Support;

  1. (z)  “Renewal Subscription Period” has the meaning given to it in Section 2.1;
  2. (aa)  “Resultant Data” means information, data and other content that is derived by or through the Software

Services or Support from Processing Customer Data and is sufficiently different from such Customer Data that such Customer Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further Processing of such information, data or content.

(bb) “Services” means the Software Services, Support, and Professional Services;

(cc) “Service Software” means the Jasper software application(s) or other software, and all Modifications of the foregoing, that Jasper makes available for online remote use of as part of the Software Services;

(dd) “SLC” means the service level agreement schedule attached to this Agreement as Schedule C, as may be updated from time to time;

(ee) “Software Services” means the software services made available by Jasper, including the making available of the Service Software, APIs, and associated offline components made available for download (if any) and any Modifications to such services and/or software, as may be purchased by Customer pursuant to one or more Order Forms, but not including Professional Services, Support, Available Third Party Products or Services, or Third Party Tools;

(ff) “Support” means, with respect to the Software Services, the support services set out in the SLC, and any Modifications thereto. For clarity, Support does not include Professional Services, hardware and related supplies and support thereof, and any onsite (e.g. onsite at a Customer location) support;

(gg) “Subscription Period” means the initial term of each Cloud Service subscription as set out in an Order Form, and each Renewal Subscription Period. If no time period is set-out in an Order Form, the initial Subscription Period will be the 12 month period commencing as of the Order Form effective date.;

(hh) “Taxes” means any and all applicable national, federal, provincial, state, municipal, local or other governmental authority taxes including all sales, use, excise, personal property, utility, goods, services, value- added, gross receipts, and services taxes, now in force or enacted in the future with respect to the supply of the Services provided by Jasper under this Agreement, provided however, that in no event shall Taxes include taxes on net income or capital;

(ii) “Term” is defined in Section 2.2;

(jj) “Third Party Tools” means the third party tools, software applications, services, content, materials, information, documents, data, specifications, products, equipment or components of or relating to the Services that are procured by Jasper and with which any or all of the Services, including the Service Software, interoperate;

(kk) “Available Third Party Products or Services” is defined in Section 4.7;

(ll) “Tool Change” is defined in Section 4.6; and

(mm) “Users” means those employees, agents, and independent contractors of Customer that are authorized by Customer to access the Software Services and who have been supplied Access Methods, or as otherwise set out in the applicable Order Form.

[END OF SCHEDULE A]

SCHEDULE B
PROFESSIONAL SERVICES TERMS AND CONDITIONS

In addition to the terms and conditions set forth in the Agreement, which continue to apply to Professional Services to the extent not inconsistent with this Schedule B, the following terms and conditions apply specifically to Professional Services provided by Jasper:

  1. Professional Services. All Professional Services to be provided by Jasper to Customer shall be described in an Order Form signed by both parties and referencing the Agreement. Each Order must be consistent with the terms in this Agreement (including this Schedule B).
  2. Time and Materials. Unless explicitly stated in the Order Form, all Professional Services are performed on a “time and material” basis.
  3. Expenses. Unless explicitly stated in an Order Form, Customer shall reimburse Jasper for all reasonable and documented expenses, including travel, parking, accommodations and meals.
  4. Change Control. If Customer wishes to request a change in respect of Professional Services ordered pursuant to an Order Form, then Customer will prepare a written change request and submit such change request to Jasper. Upon receipt, Jasper will promptly evaluate and respond to any such change request and will advise Customer in writing of any impact on the cost of, and delivery schedule for, Professional Services under any Order Form as a result of any proposed change. Customer and Jasper will negotiate in good faith any changes to costs or delivery schedules arising from a requested change. Upon confirmation from Customer of such scope change, Jasper will proceed with such change request, at the price and upon the terms agreed and the applicable Order Form shall be deemed to be amended accordingly.
  5. Representations and Warranties. Jasper represents and warrants that the Professional Services will be performed in a professional and workmanlike manner.
  6. Scheduling. Unless explicitly stated in the Order Form, Professional Services will be provided between Monday and Friday, from 8:00 am to 5:00 pm local time. Weekend and overtime rates apply outside these days and hours.
  7. Delivery Dates. Delivery dates in an Order Form are estimates only and are not binding completion dates. Change orders and other unforeseen circumstances may require the parties to adjust previously estimated delivery dates.
  8. Ownership of Deliverables and Work Product. Except for those items specifically identified in a Services Order Form as being owned by Client (“Deliverables”), Jasper shall own all right, title and interest in and to any ideas, inventions, tools, routines, subroutines, processes, methods, designs and know-how, whether or not copyrightable or patentable (“Work Product”), created or developed by Jasper in the performance of the Professional Services. Nothing in this Agreement shall be construed as granting Client any right or license, whether by implication, estoppel or otherwise, except as expressly set forth herein.
  9. Warranty Period. For a period of 3 months from delivery of a Deliverable (“Warranty Period”), Jasper warrants that such Deliverable will materially conform to the acceptance criteria set-out in an Order Form, if any. During the Warranty Period, Jasper’s sole responsibility and Customer’s sole remedy with respect to non- conforming Deliverables is to use reasonable efforts to correct the deficiency. Following the Warranty Period, any corrections to the Deliverables will be subject to a separate Order Form. The warranty set forth in this Section 9 not apply upon any of the following: (a) any change, addition, deletion or other modification was made to the Deliverables, except as specifically authorized in writing by Jasper; and (b) failure by Customer to report a deficiency within the specified Warranty Period.[END OF SCHEDULE B]

SCHEDULE C

SERVICE LEVEL COMMITMENT (“SLC”) – SOFTWARE SERVICES

Jasper is committed to providing first-rate service and support to its customers to assist resolution of any issues encountered in the use of the Software Services, as set forth in this SLC. Capitalized terms not defined in this SLC have the meanings given to them in the Agreement.

The remedies set forth in this SLC are Customer’s sole and exclusive remedies for any failure to achieve the service levels set forth in the SLC.

A. DEFINITIONS

“% Availability” has the meaning given to it in Section B.

“Availability” or “Available” means the time in any given calendar month during a Subscription Period that the Software Services ordered pursuant to an Order Form are available for access by Customer or any User (as evidenced by third party remote monitoring service: Binary Canary).

“Availability Commitment” has the meaning given to it in Section B.

“Business Day” means any day which is not a Saturday, Sunday or statutory public holiday in Ontario, Canada.

“Emergency Downtime” means any suspension of the Software Services, or Customer’s use thereof, as contemplated in the Agreement, or any other such time as the Software Services are not Available due to a short- term emergency condition under a condition or situation which poses danger to the systems, equipment, networks, or facilities required for rendering the Software Services, danger to life, etc., as the case may be, and has to be attended promptly.

“Excusable Events” means any minutes during a particular time when the Software Services are not Available due to (i) maintenance, provided Jasper has met its obligations in Section C, below; (ii) events of Force Majeure; (iii) Customer, any other person or entity for whom Customer is responsible (e.g. Users), or any other person or entity who is acting on behalf of Customer; (iv) any other services or components not provided or maintained by Jasper that impacts the Software Services; (v) any Emergency Downtime; and (vi) any breach by Customer of the Agreement.

“Maintenance Window” means anytime, other than between the hours of 8:00am and 5:00 pm (Toronto, Ontario time) on a Business Day, in which Jasper plans to conduct maintenance on the Software Services or the Jasper Materials.

“Scheduled Hours of Uptime” means 24 hours per day, 7 days per week, less Excusable Events.

  1. SERVICE LEVELSJasper will use commercially reasonable efforts to provide 99.9% Availability for the Software Services during Scheduled Hours of Uptime (“Availability Commitment”), but specifically excluding all Excusable Events.The “% Availability” in a calendar month is calculated as follows: ((n – y) x 100)/n
    “n” = the total number of minutes in a given calendar month
    “y” = the total number of minutes the Software Service is not Available in a given calendar month

    The calculation of % Availability will be prorated in any month in which the Software Services commences on any day other than the first day of the month.

  2. MAINTENANCE; EMERGENCY DOWNTIMEJasper will conduct planned maintenance and/or upgrades with respect to the Software Services duringthe Maintenance Window, unless Emergency Downtime is required or deferral of such maintenance would adversely affect the performance or security of the Software Services. Jasper shall not be liable for Software Services non-Availability during Emergency Downtime or maintenance/upgrades during Maintenance Windows.

D. SERVICE LEVEL DEFAULTS

In the event that the Availability Commitment is not achieved in any given calendar month, then Customer may request a “Service Credit” in the applicable amount as stated in the table below for each month during which such failures were measured. In order to receive any Service Credits, Customer must request such credit(s) in writing by contacting Jasper via accounts@jasperstudios.com within 14 days of the end of the applicable month. If the % Availability of such request is confirmed by Jasper and is less than the Availability Commitment, then Jasper will issue the Service Credit to Customer within the annual billing cycle following the year in which such request is confirmed by Jasper. Failure to open a case in accordance with this paragraph will result in the forfeiture of the Service Credit.

If an annual fee for Software Services are charged under an Order Form, then Service Credits are calculated as a percentage of the applicable Effective Monthly Fee. “Effective Monthly Fee” means the annual fee for Software Services divided by 12 for each elapsed month during the yearly period of an Order Form (e.g. if an Order Form has an initial 3-year term, then each yearly period shall be each 12 month period in the first 3-year term; i.e. months 1-12 are the first period, months 13-24 are the second period, and months 25-36 are the third period).

In no event shall the Service Credits due hereunder exceed a combined total of 50% of each Effective Monthly Fee.

% Availability

Service Credit (as a % of Customer’s Effective Monthly Fee)

Above 99%

0%

98.9% to 97%

5%

9.69% to 95%

10%

Below 94.9%

25%

[END OF SCHEDULE C]

SCHEDULE D

ACCEPTABLE USE POLICY

  1. General Restrictions re: Services. Customer shall not do or attempt to do, and shall not permit any of its Users or any third party to do, any of the following with respect to any or all of the Services, Jasper Materials, Available Third Party Products or Services or Third Party Tools: (a) use them to provide services for or on behalf of any third party, or commercially exploit them in any way, including by operating as a service bureau, by time-sharing, or other multiple user basis, or by framing or mirroring any part of them; (b) sell, resell, assign, sublicense, rent, lease, loan, provide, copy, reproduce, distribute, redistribute, license, sublicense, transfer, publish, make available, or otherwise transfer any of them; (c) use them in any manner that competes with Jasper, such as to build a competitive product or service or otherwise modify them or create derivative works or make derivative works based on them, including to build a product or service using any similar ideas, features, functions or graphics of them or to copy or modify any or all of them; (d) use any security testing tools in order to probe, scan or attempt to penetrate or ascertain their security, or to otherwise engage in denial of service attacks; (e) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm them, in any manner, or Jasper’s provision of services to any third party, in whole or in part, including to use any API in a manner that exceeds reasonable request volume, constitutes excessive or abusive usage; (f) use them for purposes of monitoring their availability, performance or functionality, or for any other benchmarking, comparison or competitive purpose; (h) disclose or publish any result of their performance; (i) modify, reverse engineer, adapt, translate, decompile or otherwise derive their source code; (j) use any software in connection with them that may require any or all of them, or other intellectual property of Jasper or its suppliers or licensors, to be disclosed or distributed in source code form, made available free of charge to recipients, or modifiable without restriction by recipients; (k) remove, modify or obscure any proprietary notices, labels or marks in or on any or all of them; or (l) use them in a manner inconsistent with this Agreement, or in a manner that is contrary to applicable law, rule or regulation, including privacy and export laws.
  2. Unauthorized Access or Use. Customer shall not gain, or attempt to gain, or permit any third party to gain, unauthorized access to the Software Services or Support, including through automated means not provided by Jasper or through means other than Access Methods. Without limiting the foregoing, Customer will not attempt to exceed or circumvent limitations on access, calls and use of any API. A User’s Access Method may not be shared with, or user identification reassigned to (unless reassigned as part of a concurrent user access right to a new individual replacing one who no longer requires ongoing use of the Services), any other User.
  3. Customer Systems. Customer shall set up, maintain and operate in good repair, and in accordance with any Documentation, all Customer Systems on or through which the Services are used and/or received. In addition, Customer shall ensure that all Customer Systems (a) have antivirus protection with the most current patches and updates, and have been hardened for security by removing all unsecure and unnecessary services that may have the capability to extract, store or manipulate Jasper’s Confidential Information or otherwise circumvent the security of the Services; (b) are configured in accordance with the “principle of least privilege”; and (c) will comply with any reasonable legal, technical and organizational security measures as may be specified by Jasper from time-to-time.

4. Customer Data. Customer will not or attempt to, nor will it permit its Users or any third party to, upload, input, transmit, activate, provide or make available via the Services to Jasper or any Jasper provider any Customer Data that (a) contains any Harmful Code; (b) is discriminatory, hateful, threatening, abusive, harassing, defamatory, libelous, obscene, deceptive, or fraudulent; (c) constitutes unsolicited commercial electronic messages, bulk e-mail, junk mail, or spam; (d) contains any personal or protected health information; (e) otherwise violates the Agreement; or (f) infringes misappropriates or otherwise violates any Intellectual Property Rights, right of confidentiality, right of privacy, right of publicity or other rights of any third party, or violates any applicable law, rule or regulation.

Jasper Interactive Studios Inc. – Terms of Service, Updated January 2019