Master License & Services Agreement (MLSA)

THE INDIVIDUAL ACCEPTING THESE TERMS AND CONDITIONS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY ("CUSTOMER" OR "YOU"), REPRESENTS AND WARRANTS THAT HE/SHE HAS FULL AUTHORITY TO BIND THE CUSTOMER TO THIS AGREEMENT. THESE TERMS AND CONDITIONS GOVERN YOUR RIGHTS TO USE THE OFFERINGS, UNLESS AND TO THE EXTENT YOU HAVE EXECUTED ANOTHER VALID AGREEMENT FOR THE PURCHASE AND USE OF THE OFFERINGS, IN WHICH CASE THE EXECUTED AGREEMENT SHALL APPLY. BY ASSENTING TO THESE TERMS (EITHER BY CLICKING, CHECKING A BOX, OR PLACING AN ORDER OR SIMILAR AFFIRMATIVE ACTION) CUSTOMER ACCEPTS THESE TERMS AND CONDITIONS, WHICH WILL BE DEEMED A BINDING CONTRACT BETWEEN CUSTOMER AND THE APPLICABLE DOIT ENTITY, ON BEHALF OF ITSELF AND ANY AFFILIATES PERFORMING HEREUNDER (COLLECTIVELY, "DOIT"). IF CUSTOMER DOES NOT AGREE TO OR CANNOT COMPLY WITH ALL THE TERMS AND CONDITIONS OR IF THE INDIVIDUAL DOES NOT HAVE AUTHORITY TO BIND THE CUSTOMER, THEN DO NOT ASSENT AND CUSTOMER WILL EXPRESSLY NOT BE AUTHORIZED TO ACCESS OR USE THE OFFERINGS. THESE TERMS AND CONDITIONS ARE BINDING AS OF THE EARLIEST OF THE DATE THAT CUSTOMER ACCEPTS THE TERMS AND CONDITIONS HEREIN, THE DATE SET FORTH ON AN ORDER OR THE DATE ON WHICH CUSTOMER ACCESSES, DOWNLOADS, INSTALLS, ACTIVATES OR USES THE OFFERING(S).

These Master Terms and Conditions are a master agreement that cover all products and services available by DoiT; however, provisions regarding specific offerings apply only to the extent you have purchased, accessed or used such products or services.

1. DEFINITIONS.

"Affiliate" means any entity that a party directly or indirectly controls (e.g., subsidiary) or is controlled by (e.g., parent), or with which it is under common control (e.g., sibling).

"Agreement" means these DoiT Terms and Conditions together with each Order.

"API" means an application program (or programming) interface.

"Customer" means the entity agreeing to these Terms and Conditions and any Customer Affiliate that places an Order under these DoiT Terms and Conditions, uses, downloads or accesses any Offering hereunder, or benefits from the Customer's use of an Offering.

"Customer Contractor" means any individual or entity (other than a DoiT Competitor) that: (i) has access or use of an Offering under this Agreement solely on behalf of and for Customer's Internal Use, (ii) has an agreement to provide Customer (or its Affiliates) services, and (iii) is subject to confidentiality obligations covering DoiT's Confidential Information. Customer shall provide written notice of any Customer Contractor.

"Customer Contractor Services" means products, services or content developed or provided by Customer Contractors, including, but not limited to, third party applications complimentary to the Offerings, implementation services, managed services, training, technical support, or other consulting services related to, or in conjunction with, the Offerings.

"Customer Data" means all Customer-specific or Customer identifiable data that Customer provides or makes available to DoiT through the Offerings.

"Data Processing Agreement" or "DPA" means DoiT's Data Processing Agreement located at https://help.doit.com/docs/doit-terms/data-processing-agreement which may be amended or supplemented over time.

"DoiT Competitor" means a person or entity in the business of developing, distributing, or commercializing cloud optimization, or any other products or services substantially similar to or competitive with DoiT's products or services.

"DoiT Data" shall mean the data generated by the DoiT Offerings, including but not limited to, analytical, predictive and/or contextual data. For the avoidance of doubt, DoiT Data does not include Customer Data.

"DoiT Tool" means any DoiT proprietary code, software or other tool that DoiT uses in performing Professional Services, which may be specified in the applicable SOW.

"Documentation" means DoiT's end-user technical documentation included in the applicable Offering, which is made available through the Order, and may be updated from time to time; however DoiT will not materially reduce the security or performance of the Offering.

"Error" means a reproducible failure of a Product to perform in substantial conformity with its applicable Documentation.

"Internal Use" means access or use solely for Customer's (and as applicable Affiliates'), Orders and Payment own internal information and operational purposes, and not for the benefit of any person or entity other than Customer or its Affiliates.

"Offerings" means, collectively, any Products, Product-Related Services, or Professional Services.

"Order" means any purchase order issued against a DoiT quote (or Partner quote if applicable), mutually signed quote by DoiT or Partner or other ordering document (including any SOW) accepted by DoiT that identifies Offering, Offering quantity and metric, price and Order Term ordered by Customer.

"Partner" means distributor, managed services provider or any third party authorized by DoiT to market Offerings to end user customers.

"Policies" means the policies and documents applicable to DoiT's Offerings located at https://help.doit.com/docs/doit-terms/policies which may be updated from time to time.

"Product" means any of DoiT's cloud-based software or other products ordered by Customer as set forth in the relevant Order, the available accompanying API's, the DoiT Data, any Documentation and any Updates thereto that may be made available to Customer from time to time by DoiT.

"Product-Related Services" means, collectively, (i) the technical support services for certain Products provided by DoiT, (ii) training and certification, and (iii) any other DoiT services provided or sold in connection with Products. Product-Related Services do not include Professional Services.

"Professional Services" means any professional services performed by DoiT for Customer pursuant to an SOW or other Order. Professional Services may include without limitation migrations, advisory services not included in a Subscription related cloud optimization.

"Resale Offerings" means the third party services or offerings, including cloud services by CSPs such as Amazon, Google, or Azure which are developed by such third party and ordered through DoiT. Unless expressly provided otherwise in an Order, Resale Offerings shall be subject to the third party terms and conditions directly between you and such third party, to which DoiT is not a party.

"Services" means, collectively, any Product-Related Services and any Professional Services.

"Statement of Work" or "SOW" means a mutually-agreed executed written document describing the Professional Services to be performed by DoiT for Customer, deliverables, fees, and expenses related thereto.

"Order Term" means the period of time set forth in the applicable Order during which: (i) Customer is authorized by DoiT to access and use the Offering and/or Resale Offering, or (ii) Professional Services may be performed.

"Updates" means any correction, update, upgrade, patch, or other modification or addition made by DoiT to any Offering and provided to Customer by DoiT from time to time on an as available basis.

"Usage Data" means data and information about the provision, use, and performance of the Offerings and Resale Offerings based on Customer's or user's use of the offerings.

2. ACCESS & USE RIGHTS.

2.1 License, Access & Use Rights. Subject to the terms and conditions of this Agreement (including DoiT's receipt of applicable fees), DoiT grants Customer, under DoiT's intellectual property rights in and to the applicable Product, a non-exclusive, non-transferable (except as expressly provided herein), non-sublicensable license to access and use the Products in accordance with the applicable Documentation solely for Customer's Internal Use during the applicable Order Term. Customer's access and use is limited to the quantity of units in the applicable Order. Furthermore, if DoiT provides DoiT Tools to you in connection with an Offering, the license set forth in this Section 2 applies to such DoiT Tools as used solely for your Internal Use during the period of time set forth in the applicable Order, or if none is specified, for the period authorized by DoiT. Not all Professional Services engagements will involve the use of DoiT Tools.

2.2 Restrictions. The license, access and use rights set forth in this Section 2 do not include any rights to, and you will not, with respect to any Offering (or any portion thereof): (i) employ or authorize a DoiT Competitor to use or view the Offering or Documentation, or to provide management, hosting, or support for an Offering; (ii) alter, publicly display, translate, create derivative works of or otherwise modify an Offering; (iii) sublicense, distribute or otherwise transfer an Offering to any third party (except as expressly provided herein); (iv) allow third parties to access or use an Offering (except for Customer Contractors as expressly permitted herein); (v) create public Internet "links" to an Offering or "frame" or "mirror" any Offering content on any other server or wireless or Internet-based device; (vi) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code (if any) for an Offering (except to the extent that such prohibition is expressly precluded by applicable law), circumvent its functions, or attempt to gain unauthorized access to an Offering or its related systems or networks; (vii) use an Offering to circumvent the security of another party's network/information, develop malware, unauthorized surreptitious surveillance, data modification, data exfiltration, data ransom or data destruction; (viii) remove or alter any notice of proprietary right appearing on an Offering; (ix) conduct any stress tests, competitive benchmarking or analysis on, or publish any performance data of, an Offering (provided, that this does not prevent Customer from comparing the Products to other products solely for Customer's Internal Use); (x) use any feature of DoiT APIs for any purpose other than in the performance of, and in accordance with, this Agreement; (xi) scrape, gather or otherwise use DoiT Data or Offerings for any purpose other than as expressly permitted hereunder, including for purposes of training artificial intelligence, large language models or machine learning, or (xii) cause, encourage or assist any third party to do any of the foregoing. Customer agrees to use an Offering in accordance with laws, rules and regulations directly applicable to Customer and acknowledges that Customer is solely responsible for determining whether a particular use of an Offering is compliant with such laws.

2.3 Evaluation. If DoiT approves Customer's evaluation use of a Product ("Evaluation Product"), the terms of this Agreement shall apply except for the following different or additional terms, : (i) the duration of the evaluation is as mutually agreed upon by you and DoiT, provided that either DoiT or you can terminate the evaluation at any time upon written (including email) notice to the other party; (ii) the Evaluation Product is provided "AS-IS" without warranty of any kind, and DoiT disclaims all warranties, support obligations, liabilities and other obligations for the Evaluation Product; and (iii) Customer's access and use is limited to Internal Use by Customer employees only.

2.4 Installation and User Accounts. DoiT is not responsible for installing Products unless expressly provided in the applicable Documentation or Professional Services purchased from DoiT through an Order. For Offerings requiring user accounts, you are liable and responsible for all actions and omissions occurring under your (and if applicable, your Customer Contractor's) user accounts for such Offerings. You shall promptly notify DoiT if you learn of any unauthorized access or use of your user accounts/passwords.

2.5 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Offerings, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, "Equipment"). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer's knowledge or consent. Customer agrees to make available its information and resources, and to collaborate with DoiT, as reasonably necessary for the access and use of the Offerings.

2.6 Third Party Software. DoiT uses certain third party software in its Product(s), including what is commonly referred to as open source software. Under some of these third party licenses, DoiT is required to provide Customer with notice of the license terms and attribution to the third party. Licensing terms and attributions for such third party software is made available via the applicable Documentation. DoiT shall not incorporate open source software with copyleft or viral components in the Products in any manner that would require Customer to disclose or publish Customer's own software or Customer Data.

2.7 Ownership & Feedback. Products, Product-Related Services and the DoiT Tools are made available for use or licensed, not sold. DoiT owns and retains all right, title and interest (including all intellectual property rights) in and to the Products, Product-Related Services and the DoiT Tools. Any feedback or suggestions that Customer provides to DoiT regarding its Offerings and DoiT Tools (e.g., bug fixes and features requests) is non-confidential and may be used by DoiT for any purpose without acknowledgement or compensation; provided, Customer will not be identified publicly as the source of the feedback or suggestion.

3. AFFILIATES, ORDERS AND PAYMENT.

3.1 Affiliates. Any Affiliate purchasing using or accessing any Offering hereunder will be bound by and comply with all terms and conditions of this Agreement. The Customer signing this Agreement will remain responsible for Customer's Affiliates' acts and omissions unless Customer's Affiliate has entered into its own Terms and Conditions with DoiT.

3.2 Orders. Pre-printed terms on Customer's (or partner's) purchase order shall not be applicable, unless expressly drafted to amend any specific terms and signed by both parties. Only transaction-specific quote terms stating the specific items ordered, quantity, unit, price, payment terms, Order Term, and billing/provisioning contact information will have any force or effect. All Orders are non-cancellable. All Orders are subject to DoiT's acceptance, and DoiT's obligations and liabilities to Customer are governed by the terms of this Agreement. If you place an Order with DoiT, either directly or through a partner, your placement of the Order is deemed acknowledgement of DoiT being your authorized and designated party for providing such products and services.

3.3 Payment and Taxes. Customer will pay the fees for Offerings and/or Resale Offerings to DoiT (or Partner if applicable) as set forth in the applicable Order. Unless otherwise expressly set forth on the Order, Customer will pay the fees on each Order within Thirty (30) days from the invoice date. Late payments will accrue interest at the rate of 1.5% per month (or the maximum rate permitted by law, if lower) from the due date until paid in full. Except as otherwise expressly provided in this Agreement, all fees and other amounts are non-refundable, including in the event of any termination or suspension of the Offerings. Fees are exclusive of any applicable sales, use, value added, withholding, and other taxes, however designated. Customer shall pay all such taxes levied or imposed by reason of Customer's purchase of the Offerings, Resale Offerings and the transactions hereunder, except for taxes based on DoiT's income or with respect to DoiT's employment of its employees. Customer may dispute an invoice by providing written notice to DoiT within ten (10) business days from the invoice date with sufficient detail supporting reason(s) for such dispute. In the event only part of an invoice is in dispute, Customer shall pay the remainder of the undisputed amounts in accordance with the payment terms described herein. Upon resolution of any disputed invoice, Customer shall pay the outstanding amount within thirty (30) business days after resolution of the disputed or contested invoice.

4. CUSTOMER CONTRACTORS.

4.1 Authorization. Customer hereby authorizes DoiT to give Customer Contractors the rights and privileges to the Offerings necessary to enable and provide for Customer's use and receipt of the Customer Contractor Services. If at any time Customer revokes this authorization, to the extent the Offerings provide for Customer to limit the Customer Contractor's access and use of the Offerings, then Customer is responsible for taking the actions necessary to revoke such access and use. In the event Customer requires DoiT assistance with such revocation or limitation, Customer must log a ticket within the Offering platform and DoiT will disable the Customer Contractor's access to Customer's Offerings within a reasonable period of time following receipt of such notice.

4.2 Disclaimer. Customer Contractors are subject to the terms and conditions in the Agreement while they are using the Offerings on behalf of Customer, and Customer remains responsible for their acts and omissions during such time. Any breach by a Customer Contractor of this Agreement is a breach by Customer. Offerings may contain features, including API's, designed to interface with or provide data to Customer Contractor Services or other technologies. DoiT is not responsible or liable for any loss, costs or damages arising out of Customer Contractor's or third party technology actions or inactions in any manner, including but not limited to, for any disclosure, transfer, modification or deletion of Customer Data and expressly disclaims any liability or obligations with regard to such.

5. PROFESSIONAL SERVICES.

5.1 Fees. If ordered, Professional Services will commence on a mutually agreed upon date. Estimates provided for Professional Services performed on a time-and-material basis are estimates only and not a guaranteed time of completion. Professional Services performed on a fixed fee basis are limited to the scope of services stated in the applicable Order.

5.2 Ownership of Deliverables. Professional Services do not constitute "works for hire," "works made in the course of duty," as determined under US law or similar terms under laws where the transfer of intellectual property occurs on the performance of services to a payor. Any report or deliverable arising from the Professional Services ("Deliverable") may include DoiT's findings, recommendations, and advisory information, subject to DoiT's ownership of the DoiT Materials. Subject to payment in full of the amounts due hereunder for the applicable Professional Services and to the extent the DoiT Materials are incorporated into the Deliverable(s), you shall have a perpetual, non-transferable (except as expressly provided in the Section entitled Assignment), non-exclusive license to use the DoiT Materials solely as a part of the Deliverable(s) for your Internal Use, and you may retain the copy of the Deliverable for Internal Use only (including without limitation, all your Confidential Information therein). You agree that relative to you, DoiT exclusively owns any and all software (including object and source code), flow charts, algorithms, documentation, analytical information, report templates, know-how, inventions, techniques, models, DoiT trademarks, ideas and any and all other works and materials developed by DoiT in connection with performing the Professional Services (including without limitation all intellectual property rights therein and thereto) (collectively, the "DoiT Materials") and that title shall remain with DoiT. For the avoidance of doubt, the DoiT Materials do not include any Customer Data.

6. RESALE.

DoiT makes available Resale Offerings to Customers. If applicable, such Resale Offerings shall be subject to the third party terms and conditions as specified at https://help.doit.com/docs/doit-terms ("CSP Terms") which may be updated by such third party ("Third Party CSP") from time to time. Customer acknowledges that the CSP Terms are solely managed by the Third Party CSP and that unless otherwise expressly agreed in an Order, all such CSP terms are exclusively between Customer and such Third Party CSP, not DoiT. Any dispute in connection with the CSP Terms or services shall be directly between you and such Third Party CSP. Pricing for Resale Offerings is subject to Third Party CSP pricing and discounting rates, including any programmatic updates thereto. DoiT reserves the right to adjust the pricing and discount of any Resale Offering on a proportional basis due to Third Party CSP pricing and discounting changes with 30 days' notice to the Customer following the change by the Third Party CSP. Resale Offerings may include use of DoiT Offerings, in which case these Master Terms and Conditions shall apply with respect to all such DoiT Offerings. For the avoidance of doubt, unless otherwise agreed in writing, DoiT shall have no liability for Resale Offerings, and Customers sole recourse shall be with the Third Party CSP.

7. CONFIDENTIALITY, DATA PROCESSING.

7.1 Definition. In connection with this Agreement, each party ("Recipient") may receive Confidential Information of the other party ("Discloser") or third parties to whom Discloser has a duty of confidentiality. "Confidential Information" means non-public information in any form that is in the Recipient's possession regardless of the method of acquisition that the Discloser designates as confidential to Recipient or should be reasonably known by the Recipient to be Confidential Information due to the nature of the information disclosed and/or the circumstances surrounding the disclosure. Confidential Information shall not include information that is: (i) in or becomes part of the public domain (other than by disclosure by Recipient in violation of this Agreement); (ii) previously known to Recipient without an obligation of confidentiality and demonstrable by the Recipient; (iii) independently developed by Recipient without use of Discloser's Confidential Information; or (iv) rightfully obtained by Recipient from third parties without an obligation of confidentiality.

7.2 Restrictions on Use. Except as allowed in Section 7.3 (Exceptions), Recipient shall hold Discloser's Confidential Information in strict confidence and shall not disclose any such Confidential Information to any third party, other than to its employees, and contractors, including without limitation, counsel, accountants, and financial advisors (collectively, "Representatives"), its Affiliates and their Representatives, subject to the other terms of this Agreement, and in each case who need to know such information and who are bound by restrictions regarding disclosure and use of such information comparable to and no less restrictive than those set forth herein. Recipient shall not use Discloser's Confidential Information for any purpose other than as set forth in this Agreement. Recipient shall take the same degree of care that it uses to protect its own confidential information of a similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication, or dissemination of the Discloser's Confidential Information. Recipient shall provide written notification to Discloser promptly upon Recipient becoming aware of the unauthorized use, disclosure, publication, or dissemination of the Discloser's Confidential Information while in Recipient's control.

7.3 Exceptions. Recipient may disclose Discloser's Confidential Information: (i) to the extent required by applicable law or regulation; (ii) pursuant to a subpoena or order of a court or regulatory, self-regulatory, or legislative body of competent jurisdiction; (iii) in connection with any regulatory report, audit, or inquiry; or (iv) where requested by a regulator with jurisdiction over Recipient. In the event of such a requirement or request, Recipient shall, to the extent legally permitted: (a) give Discloser prompt written notice of such requirement or request prior to such disclosure; and (b) at Discloser's cost, a reasonable opportunity to review and comment upon the disclosure and request confidential treatment or a protective order pertaining thereto prior to Recipient making such disclosure. If the Recipient is legally required to disclose the Discloser's Confidential Information as part of: (x) a legal proceeding to which the Discloser is a party but the Recipient is not; or (y) a government or regulatory investigation of the Discloser, the Discloser shall pay all of the Recipient's reasonable and actual out of pocket legal fees and expenses (as evidenced by reasonably detailed invoices) and will reimburse the Recipient for its reasonable costs and fees of compiling and providing such Confidential Information, including, a reasonable hourly rate for time spent preparing for, and participating in, depositions and other testimony.

7.4 Destruction. Upon Discloser's written request, Recipient shall use commercially reasonable efforts to destroy the Confidential Information and any copies or extracts thereof. However, Recipient, its Affiliates and their Representatives may retain any Confidential Information that: (i) they are required to keep for compliance purposes under a document retention policy or as required by applicable law, professional standards, a court, or regulatory agency; or (ii) have been created electronically pursuant to automatic or ordinary course archiving, back-up, security, or disaster recovery systems or procedures; provided, however, that any such retained information shall remain subject to this Agreement. Upon Discloser's request, Recipient will provide Discloser with written confirmation of destruction in compliance with this provision.

7.5 Equitable Relief. Each party acknowledges that a breach of this Section 7 (Confidentiality) shall cause the other party irreparable injury and damage. Therefore, each party agrees that those breaches may be stopped through injunctive proceedings in addition to any other rights and remedies which may be available to the injured party at law or in equity without the posting of a bond.

7.6. Data Processing. To the extent that processing of personal data is necessary for the provision of the Offerings, all such processing will be in accordance with the terms of this Agreement and the DPA, which is expressly incorporated herein by reference. Each Party shall comply with their respective obligations under any applicable data protection law, including all applicable machine learning and artificial intelligence laws.

7.7 Usage Data. DoiT may collect and analyze Usage Data, and DoiT may use Usage Data to maintain, improve, enhance, and promote DoiT's Services without restriction or obligation. However, DoiT may only disclose Usage Data to others if the Usage Data is aggregated and does not identify Customer or Users.

DoiT may copy, display, modify, and use Customer Data only as needed to provide and maintain the Offerings and related services. Customer is responsible for the accuracy and content of Customer Data.

7.8 Machine Learning. DoiT leverages machine learning and artificial intelligence in providing the Offerings to Customer, including for purposes of querying Customer Data and Usage Data. Such methods are used for improving visibility and the Offerings for Customer. Nothing in this section will reduce or limit DoiT's obligations regarding Personal Data that may be contained in Usage Data or Customer Data under Applicable Data Protection Laws. For the avoidance of doubt, the Customer Data and Usage Data refers to any data, information, or content provided by the customer, which could include data generated through the customer's interactions with DoiT Offerings. This data might encompass configuration settings, usage patterns, or other inputs that the customer provides while using an Offering. Such data not related to any other Customer's data and specifically excluding the Customer's data processed by a Resale Offering.

8. WARRANTIES & DISCLAIMER.

8.1 No Warranty for Pre-Production Versions. Any pre-production feature or version of an Offering provided to Customer is provided "AS IS" without warranty of any kind and will not create any obligation for DoiT to continue to develop, productize, support, repair, offer for sale, or in any other way continue to provide or develop any such feature or Offering. Customer agrees that its purchase is not contingent on the delivery of any future functionality or features, or dependent on any oral or written statements made by DoiT regarding future functionality or features.

8.2 Product Warranty. If Customer has purchased a Product, DoiT warrants to Customer during the applicable Order Term that: (i) the Product will substantially perform in accordance with the Documentation; (ii) the Product will operate without Error, and (ii) DoiT uses industry standard techniques designed to prevent the Products at the time of delivery from introducing malicious code into Customer Data. You must notify DoiT of any warranty claim during the Order Term. Your sole and exclusive remedy and DoiT's entire liability for its breach of this warranty will be for DoiT, at its own expense to do at least one of the following: (a) use commercially reasonable efforts to remediate any issue such that the Product substantially performs in accordance with the Documentation; (b) use commercially reasonable efforts to provide a work-around or correct such Error; or (c) terminate your license and right to access and use the applicable non-conforming Product and refund the prepaid fee by Customer prorated for the unused period of the Order Term. DoiT shall have no obligation regarding Errors reported after the applicable Order Term.

8.3 Services Warranty. DoiT warrants to Customer that it will perform all Services in a professional and workmanlike manner consistent with generally accepted industry standards. Customer must notify DoiT of any warranty claim for Services during the period the Services are being performed or within 30 days after the conclusion of the Services. Customer's sole and exclusive remedy and the entire liability of DoiT for its breach of this warranty will be for DoiT, at its option and expense, to (a) use commercially reasonable efforts to re-perform the non-conforming Services, or (b) refund the portion of the fees paid by Customer attributable to the non-conforming Services.

8.4 Exclusions. The express warranties hereunder do not apply if: (i) the applicable Product or Service has been modified, except by DoiT, (ii) the applicable Product or Service has not been installed, used, or maintained in accordance with this Agreement and/or Documentation, (iii) the Customer's environment is non-conforming with any specification in the Documentation or experiences a failure or disruption, (iv) Customer's failure to adhere to DoiT's reasonable instructions (vi) Customer's failure to remain on the latest version, or (v) the Product or Service is non-conforming due to a failure to use an applicable Update. If any part of a Product or Service references websites, hypertext links, network addresses, or other third party locations, information, or activities, it is provided as a convenience only.

8.5 No Guarantee. CUSTOMER ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT DOIT DOES NOT GUARANTEE OR WARRANT THAT IT WILL ANTICIPATE, FORECAST, PREDICT OR ENSURE ALL OF CUSTOMER'S OR ITS AFFILIATES' CLOUD-RELATED OPTIMIZATION NEEDS AND/OR COSTS, AND CUSTOMER AND ITS AFFILIATES WILL NOT HOLD DOIT RESPONSIBLE THEREFORE.

8.6 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 8, DOIT AND ITS AFFILIATES DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, DOIT, ITS AFFILIATES AND SUPPLIERS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT WITH RESPECT TO THE OFFERINGS AND DOIT TOOLS. THERE IS NO WARRANTY THAT THE OFFERINGS OR DOIT TOOLS WILL BE ERROR FREE, OR THAT THEY WILL OPERATE WITHOUT INTERRUPTION OR WILL FULFILL ANY OF CUSTOMER'S PARTICULAR PURPOSES OR NEEDS. DOIT DOES NOT WARRANT ANY THIRD PARTY PRODUCTS OR SERVICES.

9. INDEMNIFICATION.

9.1 DoiT's Obligation. DoiT shall at its cost and expense: (i) defend and/or settle any claim brought against Customer by an unaffiliated third party alleging that an Offering infringes or violates that third party's intellectual property rights, and (ii) pay and indemnify any settlement of such claim or any damages finally awarded to such third party by a court of competent jurisdiction as a result of such claim; provided, that Customer: (a) gives DoiT prompt written notice of such claim; (b) permits DoiT to solely control and direct the defense or settlement of such claim (however, DoiT will not settle any claim in a manner that requires Customer to admit liability without Customer's prior written consent); and (c) provides DoiT all reasonable assistance in connection with the defense or settlement of such claim, at DoiT's cost and expense. In addition, Customer may, at Customer's own expense, participate in defense of any claim.

9.2 Remedies. If a claim covered under this Section occurs or in DoiT's opinion is reasonably likely to occur, DoiT may at its expense and sole discretion (and if Customer's access and use of an Offering is enjoined, DoiT will, at its expense): (i) procure the right to allow Customer to continue using the applicable Offering; (ii) modify or replace the applicable Offering to become non-infringing; or (iii) if neither (i) nor (ii) is commercially practicable, terminate Customer's license or access to the affected portion of applicable Offering and refund a portion of the pre-paid, unused fees paid by Customer corresponding to the unused period of the Order Term.

9.3 Exclusions. DoiT shall have no obligations under this Section if the claim is based upon or arises out of: (i) any modification to the applicable Offering not made by DoiT; (ii) any combination or use of the applicable Offering with or in any third party software, hardware, process, firmware, or data, to the extent that such claim is based on such combination or use; (iii) Customer's continued use of the allegedly infringing Offering after being notified of the infringement claim or after being provided a modified version of the Offering by DoiT at no additional cost that is intended to address such alleged infringement; (iv) Customer's failure to use the Offering in accordance with the applicable Documentation; (v) Customer's failure to use the latest applicable version; and/or (vi) Customer's use of the Offering outside the scope of the rights granted under this Agreement.

9.4 Exclusive Remedy. THE REMEDIES SPECIFIED IN THIS SECTION CONSTITUTE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES, AND DOIT'S ENTIRE LIABILITY, WITH RESPECT TO ANY INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.

10. LIMITATION OF LIABILITY.

10.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, CUSTOMER'S PAYMENT OBLIGATIONS, FRAUD WILLFUL MISCONDUCT AND/OR ANY MISAPPROPRIATION BY ONE PARTY OF THE OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF (UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STATUTE, TORT OR OTHERWISE) FOR ANY LOST PROFITS, REVENUE, OR SAVINGS, LOST BUSINESS OPPORTUNITIES, LOST DATA, OR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH; OR (B) AN AMOUNT THAT EXCEEDS THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER FOR THE RELEVANT OFFERING DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SPECIFIED IN THIS AGREEMENT. MULTIPLE CLAIMS SHALL NOT EXPAND THE LIMITATIONS SPECIFIED IN THIS SECTION 10.

11. COMPLIANCE WITH LAWS.

Each party agrees to comply with all applicable laws and regulations, including federal, state, local and laws directly applicable to such party in the performance of this Agreement, including but not limited to, applicable export and import, anti-corruption and employment laws. Customer acknowledges and agrees the Offerings shall not be used, transferred, or otherwise exported or re-exported to regions that the United States, Israel and/or the European Union maintains an embargo or comprehensive sanctions (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity subject to individual prohibitions (e.g., parties listed on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders) (collectively, "Designated Nationals"), without first obtaining all required authorizations from the applicable government. Customer represents and warrants that Customer is not located in, or is under the control of, or a national or resident of, an Embargoed Country or Designated National. DoiT represents and warrants that DoiT is not located in, or is under the control of, or a national or resident of, an Embargoed Country or Designated National.

12. SUSPENSION AND TERMINATION.

This Agreement shall remain effective until termination in accordance with this Section or as otherwise specified herein. DoiT may immediately suspend Customer's access to, or use of, the Offerings if: (i) DoiT believes that there is a significant threat to the security, integrity, functionality, or availability of the Offerings; (ii) Customer or Customer users are in breach of Section 2.2 (Restrictions); or (iii) Customer fails to pay DoiT when undisputed fees are due; provided, however, DoiT will use commercially reasonable efforts under the circumstances to provide Customer with notice and, if applicable, an opportunity to remedy such violation prior to any such suspension. Either party may terminate this Agreement upon 30 days' written notice of a material breach by the other party, unless the breach is cured within the 30-day notice period. Upon termination of this Agreement for any reason: (a) all Customer's access and use rights granted in this Agreement will terminate; (b) Customer must promptly cease all use of Offerings and de-install all software components installed in Customer's environment (if any); and (c) Customer Data will be deleted in accordance with DoiT's data retention policies). Termination or suspension of this Agreement or Customer's access to any Offerings will not relieve Customer of its obligations to pay any undisputed and outstanding fees. Sections 1, 2.2, 7, 10, 12, and 13 and all liabilities that accrue prior to termination shall survive expiration or termination of this Agreement for any reason.

13. GENERAL.

13.1 Entire Agreement. This Agreement constitutes the entire agreement between Customer and DoiT concerning the subject matter of this Agreement and it supersedes all prior and simultaneous proposals, agreements, understandings, or other communications between the parties, oral or written, regarding such subject matter. It is expressly agreed that the terms of this Agreement shall supersede any terms in any procurement Internet portal or other similar non-DoiT document and no such terms included in any such portal or other non-DoiT document shall apply to the Offerings or Resale Offerings ordered. Any Order through a Partner is governed by this Agreement. This Agreement shall not be construed for or against any party to this Agreement because that party or that party's legal representative drafted any of its provisions.

13.2 Assignment. Neither party may assign this Agreement without the prior written consent of the other party, except to an Affiliate in connection with a corporate reorganization or in connection with a merger, acquisition, or sale of all or substantially all of its business, equity and/or assets ("Assignment"). Notwithstanding the foregoing, Customer shall provide prior written notification of any such Assignment, and Customer shall not assign this Agreement to any DoiT Competitor without DoiT's prior written consent. Any assignment in violation of this Section shall be void. Subject to the foregoing, all rights and obligations of the parties under this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns.

13.3. Governing Law; Jurisdiction; Jury Waiver. This Agreement is to be construed in accordance with and governed by the laws of the applicable jurisdiction, as set forth at [insert link] (the "Applicable Jurisdiction") without giving effect to any choice of law rule that would cause the application of the laws of any other jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be commenced only in the courts of the Applicable Jurisdiction and each Party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such legal suit, action or proceeding.

13.4 Insurance. DoiT will carry commercial insurance policies with coverage limits that meet the insurance minimums below:

Commercial general liability with a minimum limit for each occurrence of at least $1 million.

Cyber liability insurance with a minimum limit for each occurrence of at least $5 million.

13.5 Permission to List You as a Customer. Unless you direct otherwise by sending an email to DoiT at [email protected] which direction may be given at any time, you agree that DoiT may display your company name and logo (in accordance with any trademark guidelines you provide) as a DoiT customer in a manner that does not suggest your use or endorsement of any specific DoiT product or service.

13.6 Independent Contractors; No Third Party Rights. The parties are independent contractors. This Agreement shall not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. No provision in this Agreement is intended or shall create any rights with respect to the subject matter of this Agreement in any third party.

13.7 Waiver, Severability & Amendments. The failure of either party to enforce any provision of this Agreement shall not constitute a waiver of any other provision or any subsequent breach. If any provision of this Agreement is held to be illegal, invalid, or unenforceable, the provision will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect. This Agreement may only be amended, or any term or condition set forth herein waived, by written consent of both parties.

13.8 Force Majeure. Neither party shall be liable for, nor shall either party be considered in breach of this Agreement due to, any failure to perform its obligations under this Agreement (other than its payment obligations) as a result of a cause beyond its reasonable control, including but not limited to, act of God or a public enemy, act of any military, civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other like event, disruption or outage of communications (including an upstream server block, Internet or other networked environment disruption or outage), power or other utility, labor problem, or any other cause which could not have been prevented with reasonable care. The party experiencing a force majeure event, shall use commercially reasonable efforts to provide notice of such to the other party.

13.9 Notices. All legal notices will be given in writing to the addresses in the Order and will be effective: (i) when personally delivered, (ii) on the reported delivery date if sent by a recognized international or overnight courier, or (iii) five business days after being sent by registered or certified mail (or ten days for international mail).