SERVER GENERAL MASTER TERMS AND CONDITIONS

Server General™ (All Editions) (v2021.1)

These Master Terms and Conditions, together with any Orders, and any other materials attached or incorporated by reference, constitutes the entire agreement (the “Agreement”) between Server General, Inc., having its current principal place of business at 865 Merrick Road, Suite 204, Baldwin, NY 11510 (“Server General”) and the customer set forth in the Order (“Customer”), and apply to the Server General software, delivered as a service, set forth in the Order, including the On-Premises SGL appliance (defined below), Server General Agent, code, object code, scripts, files, and any software-related files or code as made available by Server General, and any subsequent update Customer receives of the foregoing, together with any included documentation (collectively, the “Software”).

This Agreement is divided into four parts: Part I: Terms and Conditions Applicable to Free Licenses; Part II: Terms and Conditions Applicable to Subscription Licenses; Part III: Terms and Conditions Applicable to the Provision of Key Storage Materials; and Part IV: General Terms and Conditions. ALL RIGHTS GRANTED TO CUSTOMER UNDER PARTS II AND III WILL BE SUBJECT TO PAYMENT OF APPLICABLE SERVICE SUBSCRIPTION FEES.

PART I: TERMS AND CONDITIONS APPLICABLE TO FREE LICENSE

  1. Free License.

Customer may enter into a Free License (as defined below) for the Software subject to the terms and conditions of this Agreement by placing an order (“Free Order”). Pursuant to the Free Order, Server General hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive, royalty-free license to use the Software in accordance with the accompanying documentation solely for Customer’s internal evaluation, development and testing purposes (“Free License”) for a period defined in the Free Order and commencing on the effective date of the Free Order (“Free Period”). Once the Free Period has expired, Customer will have the option to continue use of the Software through a purchased Subscription Service License (as defined below) or the Free License shall expire and this Agreement shall terminate and the terms of Part IV, Section 10 below shall apply with respect to such termination.

  1. Warranty Disclaimer. DURING THE FREE PERIOD, THE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.

  2. Limitation of Remedies and Damages. DURING THE FREE PERIOD, NEITHER SERVER GENERAL NOR ITS THIRD PARTY SUPPLIERS WILL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER RELATING TO THE SOFTWARE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (A) FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (B) FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS. NOTHING IN THIS PART I WILL LIMIT SERVER GENERAL’S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY SERVER GENERAL’S NEGLIGENCE OR SERVER GENERAL’S LIABILITY FOR FRAUD.

  3. No Indemnity. During the Free Period, Server General will not be liable to Customer under any claim, suit or action, under any theory of or related to indemnity arising from the Software.

PART II: TERMS AND CONDITIONS APPLICABLE TO Server General SUBSCRIPTION LICENSES

  1. Applicability. The terms and conditions of this Part II will supersede the terms and conditions of Part I for Customer’s orders of Service Subscription Licenses, and the terms and conditions of Part IV will continue to apply.

  2. Orders. Customer shall place orders for Subscription Service Licenses pursuant to a mutually executed order form between the parties (each, an “Order”).

  3. License Grant. Subject to the terms and conditions of this Agreement, Server General grants Customer a non-sublicensable, non-transferable, non-exclusive license (“Subscription License”) for a limited term as set forth on the Order (“Subscription Term”) to use the Software provided hereunder for internal use only in accordance with the documentation provided with the Software for the number of Servers (each, a “Server License”) set forth in an Order. Other license rights, terms and restrictions specified in the applicable Order are incorporated by reference.

  4. Payment. All rights granted to Customer and obligations of Server General under this Part II and Part III will be subject to payment of applicable Subscription License Fees due upon the effective date of the Order (“License Fees”). Except as set forth in Section 5 and 7 of this Part II, all fees due hereunder are nonrefundable. All amounts payable under this Agreement are exclusive of all sales, use, value-added, withholding, and other taxes and duties. Customer will pay all such taxes and duties, except for taxes payable on Server General’s net income. Except for invoices disputed in good faith, all past due amounts will incur interest at a rate equal to the lower of 1.0% per month or the highest rate permitted by law, beginning as of 15 days after the applicable due date. If at any time Customer is delinquent (including during any grace periods) in the payment of License Fees, Server General may, in its discretion, disable any Server Licenses related to such unpaid License Fees. If an executed order contains different payment terms, those terms will apply.

  5. Limited Warranty. Server General warrants for a period of 30 days from Customer’s first installation of the Software (“Warranty Period”) that the Software will materially conform to Server General’s then-current user documentation for such Software. This warranty covers only problems reported to Server General during the Warranty Period. Any liability of Server General for a breach of the foregoing warranty will be limited exclusively to Software repair or replacement or, if repair or replacement is commercially impractical, refund of the License Fee paid for the Software. EXCEPT FOR THE FOREGOING, ALL SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. FURTHER, SERVER GENERAL DOES NOT WARRANT RESULTS OF USE OR THAT THE SOFTWARE IS BUG FREE OR THAT ITS USE WILL BE UNINTERRUPTED.

  6. Limitation of Remedies and Damages. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR OTHERWISE, NEITHER SERVER GENERAL NOR ITS THIRD PARTY SUPPLIERS WILL BE LIABLE OR OBLIGATED WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE LICENSE FEES PAID TO SERVER GENERAL BY CUSTOMER WITH RESPECT TO THE SOFTWARE (AS EQUITABLY DETERMINED IN THE EVENT THE SOFTWARE IS BUNDLED WITH OTHER SOFTWARE DURING THE SIX MONTH PERIOD BEFORE THE CAUSE OF ACTION AROSE), (II) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; (III) FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES; (IV) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR (V) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY. NOTHING IN THIS AGREEMENT WILL LIMIT SERVER GENERAL’S LIABILITY FOR (I) FRAUD OR LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY SERVER GENERAL’S NEGLIGENCE OR (II) WITH RESPECT TO SECTION 7, INDEMNIFICATION.

The provisions of this Agreement allocate the risks between Customer and Server General. Server General’s pricing reflects this allocation of risk and the limitations of liability specified herein.

  1. Indemnification. Server General will defend and hold Customer harmless from claims by third parties resulting from infringement by the Software of any United States patent or copyright or any misappropriation of any trade secret, provided Server General is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Server General will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to Software or portions or components thereof (i) not supplied by Server General, (ii) that are modified by Customer, (iii) combined with other products, processes or materials where the alleged infringement relates to such combination, (iv) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (v) where Customer’s use of such Software is not strictly in accordance with this Agreement. This provision will not survive the termination of this Agreement. If Customer’s use of any of the Software is, or in Server General’s opinion is likely to be, enjoined due to the type of infringement specified in this Section 7, or if a claim is brought against Customer due to the type of infringement specified in this Section 7, then Server General may, at its sole option and expense: (a) procure for Customer the right to continue using such Software under the terms of this Agreement, (b) replace or modify such Software so that it is non-infringing and substantially equivalent or better in function to the enjoined Software, or (c) if options (a) and (b) above cannot be accomplished despite Server General’s efforts, then Server General may terminate Customer’s rights and Server General’s obligations hereunder with respect to such Software and remit to Customer a pro-rata refund of the prepaid License Fees for such Software corresponding to the portion of the then-current Subscription Term for such Software after the date of such termination.

  2. Support and Maintenance. At no additional charge, Server General will provide Software maintenance and support services in accordance with Server General’s standard Software Maintenance Program.

PART III: TERMS AND CONDITIONS APPLICABLE TO THE PROVISION OF Server General LOCKER FOR STORING KEYS

  1. Server General will provide key storage in accordance with the key locker product, if any, ordered in an Order, as set forth in this Part III.

  2. Server General Locker™ Appliance (On-Premises). If On-Premises Server General Locker Appliance (“On-Premises SGL”) is ordered hereunder, the terms of Part II and Part IV shall apply to such Subscription Licenses, as applicable. In addition, the following terms and conditions shall apply:

A. The license grant set forth in Part II Section 3 above shall be modified to limit use of the On-Premises SGL to the number of Encryption Keys ordered under an Order, for access by employees and consultants of Customer only. The On-Premises SGL will be only for use with the Server General Software.

B. The On-Premises SGL key storage system is offered as a managed appliance to store Customer’s keys in a secure manner. The Customer will have no access to the On-Premises SGL appliance. Server General will not have direct access to Customer’s On-Premises SGL but such access will be granted as reasonably required to comply with this Agreement or upon request by the Server General technical staff to render technical support to the Customer. Server General staff will have no access to encryption keys stored in this appliance and will not be unable to assist the Customer in recovering any Encryption Keys if Customer loses the Encryption keys.

C. The On-Premises SGL appliance will be installed by Server General technical staff remotely.

  1. Cloud Server General Locker. Subject to the terms and conditions of the Agreement, if a Cloud Server General Locker (“Cloud SGL”) is ordered hereunder, the terms of this Part III, Section 3, and Part IV shall apply to such Order. Upon receipt of the Order, Server General will make Cloud SGL available to Customer only (i) during the limited term as set forth on the Order, (ii) by employees and consultants of Customer, and (iii) for Customer’s internal business purposes and solely for use with the Server General Software, as set forth in Server General’s documentation.

A. Server General will provide support 24 hours a day, 7 days a week to resolve emergency operational outages associated with the Cloud SGL infrastructure.

B. Server General will operate an information security program designed to protect Customer data and utilizing industry standard policies and technologies. Server General will use third party hosting providers (“Third Party Hosting Providers”) to host the Cloud SGL.

C. The Server General Agent software will access the Cloud Server General Locker. Customer will be solely responsible for administering, safeguarding and monitoring the use of the Server General Agent software and passwords and encryption keys.

PART IV: GENERAL TERMS AND CONDITIONS

  1. Confidentiality. Each party acknowledges on its own behalf and on behalf of its officers, directors, employees, agents and consultants, and those of its affiliates (“Personnel”), that, during the term of this Agreement, it (“Receiving Party”) may receive from or on behalf of the other party (“Disclosing Party”) confidential and proprietary information relating to Disclosing Party (“Proprietary Information”).

  2. Server. The term “Server” means a single computing system, including but not limited to a primary network server, a failover server, or a virtual (or otherwise emulated) server, or Server General Virtual Appliance on which the Software is installed.

  3. Encryption Key. The term “Encryption Key” means each unique encryption key generated by a Customer using the Server General Agent software.

  4. Deprecation of Services

  • Discontinuance of Services. Server General may discontinue any Services or any portion or feature for any reason at any time without liability to Customer.
    • Deprecation Policy. Server General will announce if it intends to discontinue or make backwards incompatible changes to the Services.

  1. Restrictions. Customer may not copy the Software or the Server General Virtual Appliance, except for one copy made solely for backup purposes.

  2. Ownership. Notwithstanding anything else, as between Customer and Server General, Server General retains all title to, and, except as expressly and unambiguously licensed herein, reserves all rights in the Software, all copies and derivative works thereof (by whomever made) and all related documentation and materials.

  3. High Risk Activities. Customer acknowledges that the Software is not intended for use in connection with any high risk or strict liability activity (including, without limitation, air travel, space travel, firefighting, police operations).

  4. Assignment. Customer may not assign or otherwise transfer in whole or in part or in any manner any rights, obligations, or any interest in or under this Agreement without Server General’s prior written consent and any attempted assignment will be void.

  5. Open Source Licenses. Any open source software provided hereunder will be provided pursuant to such open source software license terms and conditions.

  6. Term and Termination. This Agreement is effective from the date Customer signed the Free Order or the Order and will remain in force until terminated.

  7. Records and Inspection. Customer will conduct such internal audits as are reasonably required to verify continuing full compliance with this Agreement.

  8. Miscellaneous. This Agreement will be governed by the laws of the State of New York (U.S.A.) exclusive of its choice of law provisions.