neon Analytics User Agreement

NEON ANALYTICS AGREEMENT

This Agreement is entered into by and between B ATOMIC LLC, a Delaware limited liability company (“B Atomic”) and the customer identified in the corresponding Purchaser Order(s) referencing this

Agreement (“Customer”). B Atomic and Customer are each sometimes referred to herein as a “Party” and collectively as the “Parties”.

This Agreement is effective as of the date it is executed by both B Atomic and Customer (the “Effective Date”). The individual executing this Agreement and any Purchase Order on behalf of Customer is accepting the terms and conditions of this Agreement on behalf of the Customer and represents and warrants that such individual has the authority to bind Customer to the terms of this Agreement.

Recitals:

B Atomic is in the business of developing, improving and customizing information technology products, platforms and services for independent insurance agencies and carriers.

B Atomic has developed an integrated, scalable business automation system for insurance agents that is built on the SalesForce platform and designed to enable insurance agents to automate their business processes and capture and utilize anonymized customer data to create customer insights and improve the customer experience and support the agent’s business (“Neon”).

B Atomic has developed a data analytics-based business insight tool (“Neon Analytics”) that integrates machine learning and predictive analytics to provide business insights to insurance agencies.

B Atomic entered into a Software as Service Agreement with Domo, Inc. (“Domo”) effective on or about October 15, 2020 (the “Domo Service Agreement”). Pursuant to the Domo Service Agreement, B Atomic purchased subscriptions for certain Domo licenses, support packages, toolkits and other services (the “Domo Subscriptions”);

Pursuant to the Domo Service Agreement, Domo granted B Atomic the right to provide sub-instance access to the Services to B Atomic customers as “Permitted Third Parties” under the Domo Service Agreement; and

B Atomic desires to sell to Customer, and Customer desires to purchase from B Atomic, the Deliverables (as defined herein) on the terms and conditions set forth herein.

In consideration of the mutual promises contained herein, and other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

1. DEFINITIONS

“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with a Party, where "control" means owning 50% or more of the voting securities of such entity or the ability to direct managerial decisions or board decisions of such entity.  

“Anonymized Data” means electronic data and information submitted from Customer to B Atomic from which will be removed all personally identifiable information data sets to ensure the individuals or entities to whom the data relates remain anonymous.

“Authorized User” means an individual who is authorized to use the Deliverables and is provided a unique login to B Atomic’s Domo account.

“Beta Products” or “Beta Services” means B Atomic or Domo products or services that may be made available to Customer to try at its option at no additional charge which are designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.

“Content” means information obtained by B Atomic from publicly available sources or its third-party content providers and made available to Customer through the Deliverables, Beta Products, Beta Services or pursuant to a Purchase Order, as more fully described in the Documentation.

“Deliverables” means Neon Analytics and the products, services, Content, Permitted Third Party rights under the Domo Service Agreement, and other deliverables identified in Purchase Orders executed by Customer.

“Documentation” means the applicable usage guides and policies of B Atomic and Domo, as updated from time to time.

“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

“Non-B Atomic Application” means a Web-based, mobile, offline or other software application functionality that interoperates with a Deliverable that is provided by Customer or a third party and/or listed on a Marketplace.

“Purchase Order” means a document specifying the Deliverables to be provided that is entered into between Customer and B Atomic or any of their Affiliates, including any addenda and supplements thereto. By entering into a Purchase Order, Customer agrees to be bound by the terms of this Agreement.

“Personal Information” means information which alone or in combination with other information can identify a specific person. For the avoidance of doubt, this definition of Personal Information includes but is not limited to any information subject to data protection or data privacy laws.

USE OF DELIVERABLES.

1. Access to and Use of Deliverables. Conditioned upon Customer’s full and timely performance of the terms, covenants and conditions of this Agreement, B Atomic hereby grants to Customer the non-transferable, non-exclusive, limited right to access and use the Deliverables during the term of this Agreement subject to and in accordance with the terms and conditions set forth in this Agreement, any applicable Purchase Order, the Domo Service Agreement, and the Documentation, which are hereby incorporated herein by reference. Customer may access and use the Deliverables solely for its internal business purpose subject to the terms and any additional limitations set forth in the Purchase Order.

1. Authorized Users. Customer may permit Authorized Users to use the Deliverables solely on

Customer’s behalf and solely for Customer’s internal business operations. Customer is responsible for ensuring that Authorized Users comply with the terms of this Agreement and is liable for any breach of this Agreement by any Authorized Users.

1. Usage Limits. The Deliverables are subject to usage limits specified in Purchase Orders and Documentation. If Customer exceeds a usage limit, B Atomic may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding B Atomic’s efforts, Customer is unable or unwilling to abide by a usage limit, Customer will execute a Purchase Order for additional quantities of the applicable Deliverables promptly upon B Atomic’s request, and/or pay B Atomic for excess usage in an amount to be determined in B Atomic’s sole, but reasonable, discretion.

1. Customer Responsibilities. Customer will (a) be responsible for Authorized Users’ compliance with this Agreement, the Domo Service Agreement, Documentation and Purchase Orders; (b) be responsible for the accuracy of Customer data, the means by which Customer acquired Customer data, and the interoperation of any Non-B Atomic applications with which Customer uses Deliverables; (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Deliverables, and notify B Atomic promptly in writing of any such unauthorized access or use, and (d) use Deliverables only in accordance with this Agreement, the Domo Service Agreement and Documentation. Any use of the Deliverables in breach of the foregoing by Customer or Authorized Users may result in B Atomic’s immediate suspension of services and the Deliverables.

1. Usage Restrictions. Customer will not (a) make any Deliverable available to anyone other than Customer or Authorized Users, or use any Deliverable for the benefit of anyone other than Customer or its affiliates, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Deliverable, or include any Deliverable in an outsourcing offering, (c) use a Deliverable to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Deliverable to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Deliverable or third-party data contained therein, (f) attempt to gain unauthorized access to any Deliverable or its related systems or networks, (g) permit direct or indirect access to or use of any Deliverable in a way that circumvents a contractual usage limit, or use any Deliverables to access or use any of B Atomic intellectual property except as permitted under this Agreement, (h) modify, copy, or create derivative works based on a Deliverable or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein, (j) frame or mirror any part of any Deliverable, other than framing on Customer's own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, (k) disassemble, reverse engineer, or decompile a Deliverable or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Deliverable, (3) copy any ideas, features, functions or graphics of the Deliverable, or (4) determine whether the Deliverables are within the scope of any patent.
   

1. B ATOMIC RESPONSIBILITIES

1. Provision of Deliverables. B Atomic will (a) make the Deliverables available to Customer pursuant to this Agreement and the applicable Purchase Orders and Documentation; (b) provide applicable B Atomic standard support for the Deliverables to Customer; (c) use commercially reasonable efforts to make any online Deliverables available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which B Atomic shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond B Atomic’s reasonable control, including, for example, an act of God, pandemic, epidemic, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay, Non-B Atomic Application, unavailability or temporary down-time of any dependent Domo application, or denial of service attack; and (d) provide the Deliverables in accordance with laws and government regulations applicable to B Atomic’s products or services to its customers generally, and subject to Customer’s use of the Deliverables in accordance with this Agreement, the Documentation, Domo Service Agreement, and the applicable Purchase Order.

1. Protection of Customer Data. B Atomic will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer data. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer data.

1. Beta Products and Services. From time to time, B Atomic may make Beta Products and Services available to Customer at no charge. Customer may choose to try such Beta Products and Services or not in its sole discretion. Beta versions of B Atomic’s Products and Services may contain bugs, errors, or other issues. Beta Products and Services are provided “AS-IS” without any express or implied warranty or indemnity for any problems or issues. B Atomic shall not have any liability relating to Customer’s use of B Atomic Beta Products or Services.

1. NON-B ATOMIC PRODUCTS AND SERVICES

1. Non-B Atomic Products and Services. B Atomic or third parties may make available third-party products or services. Any acquisition by Customer of such products or services, and any exchange of data between Customer and any non-B Atomic provider, product or service is solely between Customer and the applicable non-B Atomic provider. B Atomic does not warrant or support Non-B Atomic Applications or other non-B Atomic products or services, unless expressly provided otherwise in a Purchase Order. B Atomic is not responsible for any disclosure, modification or deletion of Customer data resulting from access by such Non-B Atomic Application or its provider.

1. Integration with Non-B Atomic Applications. The Deliverables may contain features designed to interoperate with Non-B Atomic applications, including Domo applications. B Atomic cannot guarantee the continued availability of such service features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-B Atomic application ceases to make the Non-B Atomic Application available for interoperation with the corresponding Deliverable features in a manner acceptable to B Atomic.
   

1. FEES AND PAYMENT

1. Fees. Customer will pay all fees specified in Purchase Orders. Except as otherwise specified herein or in a Purchase Order (i) fees are based on the Deliverables purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant term.

1. Invoicing and Payment. Fees will be invoiced in advance and otherwise in accordance with the relevant Purchase Order.  Unless otherwise stated in the Purchase Order, fees are due net 30 days from the Customer’s receipt of the invoice.B Atomic shall submit a valid Form W-9 to Customer prior to the initial payment. If any invoiced amount is not received by B Atomic by the due date, then without limiting B Atomic’s rights or remedies, those charges shall accrue interest at the rate of 1.0% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. If any charge owing by Customer is 30 days or more overdue, B Atomic may, without limiting its other rights and remedies, suspend services and use of the Deliverables until such amounts are paid in full, provided that B Atomic has given Customer at least seven (7) days’ prior notice that its account is overdue.

1. Taxes. B Atomic's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If B Atomic has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, B Atomic will invoice Customer and Customer will pay that amount unless Customer provides B Atomic with a valid tax exemption certificate authorized by the appropriate taxing authority.

1. PROPRIETARY RIGHTS AND LICENSES

1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, B Atomic reserves all of its right, title and interest in and to the Deliverables, including all of their related intellectual property rights. B Atomic owns and shall retain all proprietary rights, including all copyright, patent, trade secret, trademark and all other intellectual property rights, in and to the Deliverables and any corrections, bug fixes, enhancements, updates, derivative works and/or other modifications to the Deliverables, whether made by B Atomic, Customer or any third party. The license(s) and rights granted under this Agreement do not provide Customer with title to or ownership of the Deliverables or any B Atomic product, but only a right of limited use under the terms and conditions of this Agreement. No rights are granted to Customer hereunder other than as expressly set forth herein.

1. License by Customer to Use Feedback. Customer grants to B Atomic and its affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into B Atomic’s products and services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Authorized Users relating to the operation of B Atomic’s Deliverables, products, platforms or services. Notwithstanding anything in this Agreement to the contrary, B Atomic shall have the right to retain, utilize, commercialize, use, reproduce, copy, modify, publish, distribute, license, sell, offer for sale, create derivative works thereof, or otherwise exploit any information or feedback provided by Customer that is codified or otherwise integrated into the Deliverables or B Atomic’s products. Nothing contained in this Agreement shall obligate
   

Customer to share inventions, discoveries, applications or improvements to B Atomic that Customer does not wish to be integrated into the Deliverables or B Atomic’s products.

1. Sharing of Anonymized Data. Customer shall, with the assistance of B Atomic, automate its business processes to capture, accumulate and share with B Atomic Anonymized Data, including anonymized customer data. The Parties shall not share or disclose any Personal Information with or to each other. The Parties shall take all necessary steps to ensure the Customer’s information, customer data, and other information exchanged between the Parties is anonymized to fullest extent necessary to ensure the non-disclosure of Personal Information. Each party shall adopt operating procedures and processes, subject to the other Party’s review and approval, to ensure data is anonymized and sharable with the other Party. B Atomic shall have the right to retain, utilize, commercialize, use, reproduce, copy, modify, publish, distribute, license, sell, offer for sale, create derivative works thereof, or otherwise exploit any Anonymized Data provided by Customer. B Atomic shall take all steps necessary to ensure Customer’s anonymized data is not shared with other B Atomic customers until such time as such data is fully anonymized.

1. Aggregated Data. Customer hereby grants B Atomic a non-exclusive, "as-is," perpetual, royalty free license to use Aggregated Data (defined below) for the purpose of developing and improving the Deliverables and B Atomic’s products, and aggregating, anonymizing and de-identifying such Aggregated Data for purposes of running statistics, analytics, performing benchmarking and routing anonymized data to B Atomic’s Data Lake, Data Warehouse and customers. For purposes of this Agreement, "Aggregated Data" means customer data that is de- identified in accordance with law and combined with other similar data of other insurance agencies, insurance carriers and B Atomic customers. Aggregated Data may include Book of Business Total Premium, Book of Business by Line of Business, Canceled Business YTD, Claims YTD, Claims by Type (auto, home, etc.), Service Request Origination (phone, email, web, etc.), Average Policy Premium by State/Zip Code, Average Days to Complete Service Requests, Average Days to Complete Service Requests by Type, New Opportunities/Quotes, New Opportunities/Quotes by Line of Business, New Business YTD, New Business Lead Source, New Business by Policy Type, New Business by Carrier, Team Size (producers and service if applicable). Aggregated Data shall not include any (i) Personal Information, (ii) information identifying the Customer or any identifiable customer of Customer; (iii) Customer Confidential Information (as defined herein); or

(iv) Customer intellectual property rights or proprietary information. B Atomic shall comply with all data privacy and data security requirements set forth in this Agreement with respect to the use of the Aggregated Data.

1. Data Protection and Security. If, despite the covenants set forth in the preceding paragraph, a Party shares or discloses any Personal Information to other Party, the Parties acknowledge and agree they are separate, independent controllers of personal data; each Party will be autonomous and fully independent in regards to determining the nature, scope and purpose of processing personal data under the Agreement. Both Parties shall be individually subject to and responsible for complying with the obligations imposed on a controller under Applicable Data Protection Law. The Parties acknowledge their respective roles under Applicable Data Protection Law, and facilitate communication and assistance between the Parties in their compliance with Applicable Data Protection Law. In no event shall the Parties be considered joint controllers of as defined in Article 26 of the GDPR or any Applicable Data Protection Law. The Parties agree to assist one another, upon request, in ensuring compliance with each Party’s obligations under Applicable Data Protection Law, taking into account the nature of processing and the information available to the Parties, without assuming any liability or obligations of the other Party. The Parties, as independent controllers recognize the following mutual obligations:

1. to maintain proper records of all processing of Personal Information;

1. to respect the fundamental rights of data subjects and the obligations of a controller with respect to personal data protection under Applicable Data Protection Law;

1. to implement appropriate technical and organizational measures to prevent unlawful disclosure, unauthorized processing of or accidental loss, destruction, damage or alteration of personal data, considering the state of the art of data protection technology, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights of natural persons;

1. to document and demonstrate compliance with Applicable Data Protection Law; and

1. to notify the other Party of any relevant complaint or request by a data subject under the Agreement, and provide the other Party with relevant details of how it shall resolve or respond to the request or complaint.

1. License by Customer to Use Anonymized Data and Create Derivative Works. Customer grants to B Atomic and its affiliates a worldwide, perpetual, irrevocable, royalty-free license to (a) use the Anonymized Data for any lawful purpose; (b) pool and aggregate the Anonymized Data with Anonymized Data obtained from other B Atomic customers and affiliates; (c) incorporate the Anonymized Data into B Atomic’s products, platforms and services; (d) create derivative works, products, platforms and services from the Anonymized Data (the “Derivative Works”); and (e) to sell the Anonymized Data and Derivative Works to third parties. The prices set forth in Customer’s Purchase Order reflect Customer’s agreement to (a) share Anonymized Data with B Atomic during the term of this Agreement; and (b) permit B Atomic to utilize such Anonymized Data and Derivative Works for its commercial interests as it deems appropriate.

1. Additional License by Customer to B Atomic. Customer grants B Atomic, its affiliates and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display any Non-B Atomic applications and program code created by or for Customer using a B Atomic Deliverable or for use by Customer with the Deliverables, and Customer data, but only to the extent necessary for  B Atomic to provide and ensure proper operation of, the Deliverables and associated systems in accordance with this Agreement. If Customer chooses to use a Non-B Atomic application with a Deliverable, Customer grants B Atomic permission to allow the Non-B Atomic application and its provider to access Customer data as required for the interoperation of that Non-B Atomic application with the Deliverables. Subject to the limited licenses granted herein, B Atomic acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Non-B Atomic application or such program code.

1. CONFIDENTIALITY

1. Safeguarding Confidential Information. Each Party shall ensure that its officers, directors, consultants, employees, subcontractors, agents and representatives (collectively the “Representatives”), shall keep confidential (using at least the same standard of care as it uses to protect proprietary or confidential information of its own, but in no event less than reasonable care)
   

and not publish or otherwise disclose and not use for any purpose except as permitted herein, any Confidential Information furnished to it by the other Party pursuant to this Agreement. Upon request of the disclosing Party, the recipient shall return all Confidential Information of the discloser or destroy all such information and certify such destruction in writing to the discloser.

1. Permitted Disclosure. Either Party may disclose the Confidential Information belonging to the other party solely to the extent such disclosure is necessary in the following instances: (a) complying with applicable governmental regulations; and (b) disclosure to such Party’s Representatives whose job performance requires such access in connection with the performance of this Agreement, provided that each Party shall take all necessary steps to ensure that any persons permitted to access such Confidential Information are legally bound to hold all such Confidential Information in confidence without further disclosure to any third party. Notwithstanding anything contained in this Agreement to the contrary, both Parties may disclose to agents, customers, potential customers, vendors, and potential vendors: (i) the existence, but not the specific terms, of this Agreement; (ii) the relationship between B Atomic and Customer; (iii) the collaborative efforts undertaken by B Atomic and Customer; and (iv) such Non-Confidential Information as each Party reasonably deems necessary or beneficial to further the purposes of this Agreement.

1. Definition of Confidential Information. For purposes of this Agreement, “Confidential Information” means any information, in whatever form, whether written, electronically stored, orally transmitted or memorialized, that is disclosed by a Party to the other Party, including without limitation, Personal Information, as hereafter defined, and information relating to a Party’s business activities, know how, advertising, business plans, competitive strategies, financial plans, forecasts and performance, vendor relationships, trade secrets, product characteristics, demographics, information technology, systems, market research, general customer information and other confidential business information related to the conduct or strategy of the business of a Party, and any other information provided to a Party which by its nature would reasonably be considered confidential. Confidential Information shall not include information that: (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the Party receiving such information; (iii) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (iv) is independently developed by the recipient without use of, or reference to, any Confidential Information of the other Party; or (v) is approved for release or disclosure by the disclosing Party without restriction. Confidential Information includes the terms and conditions of this Agreement.

1. Additional Restrictions. In addition to the restrictions set forth above, (a) the recipient shall not duplicate or incorporate Personal Information into its own records or databases; (b) the recipient shall notify the disclosing Party promptly upon the discovery of the loss, unauthorized disclosure or unauthorized use of the Confidential Information and shall indemnify the disclosing Party and hold the disclosing Party harmless for such loss, unauthorized disclosure or unauthorized use, including any costs related to notifying customers, regulators or third parties and any attorneys’ fees; and (c) the recipient shall establish and maintain commercially reasonable security procedures designed to protect the confidentiality, integrity and availability of the discloser’s Confidential Information using and maintaining administrative, technical and physical safeguards consistent with the highest industry standards and all applicable laws to protect against anticipated threats or hazards to, or the unauthorized access, disclosure or use of, the other Party’s Confidential Information.

1. Compelled Disclosure. The receiving Party may disclose Confidential Information of the disclosing Party to the extent compelled by law to do so, provided the receiving Party gives the
   

disclosing Party no less than fourteen (14) days’ prior written notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing Party's cost, if the disclosing Party wishes to contest the disclosure.

1. REPRESENTATIONS AND WARRANTIES

1. B Atomic Representation and Warranties. B Atomic represents and warrants that: (a) the Deliverables will perform materially in accordance with the applicable Documentation; (b) the overall functionality and security of the Deliverables will not materially decrease during the term of this Agreement; (c) it shall take all steps necessary to ensure Customer’s data is not shared with other B Atomic customers until such time as the Customer’s data is fully anonymized; (d) the Deliverables as delivered will be free from any Malicious Code at the time of delivery; (e) the Deliverables will not infringe, misappropriate, violate or otherwise conflict with any intellectual property rights of any third party; and (e) it will comply with all applicable laws, rules and regulations.

1. Customer Representations and Warranties. Customer represents and warrants that: (a) the Customer data or other deliverables as delivered will be free from any Malicious Code at the time of delivery; (b) the Customer deliverables will not infringe, misappropriate, violate or otherwise conflict with any intellectual property rights of any third party; (c) it shall take all steps necessary to ensure Customer’s data is not shared with B Atomic until such time as the Customer’s data is fully anonymized; and (d) it will comply with all applicable laws, rules and regulations.

1. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE

PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.

1. INDEMNIFICATION

1. Indemnification by B Atomic. B Atomic shall defend, indemnify, and hold harmless Customer and its officers, directors, owners, members, managers, agents, and employees (the “Customer Indemnitees”) from and against all costs, expenses (including reasonable attorneys’ fees and costs), losses, liabilities, fines, penalties, judgments, actions, claims and damages (collectively, the “Claims”) to the extent based on or arising from (a) any breach of this Agreement by B Atomic; (b) any third party claim that the Deliverables infringe upon or misappropriate a third party’s copyright (excluding any such claims that arise from the use by B Atomic of any work product provided by

Customer); or (c) any claim arising from B Atomic’s failure to comply with any open source or third party license; provided Customer (i) promptly gives B Atomic written notice of the any such Claims, (ii) gives B Atomic sole control of the defense and settlement of the Claims (except that B Atomic may not settle any Claims unless it unconditionally releases Customer of all liability), and

(iii) gives B Atomic all reasonable assistance, at B Atomic’s expense.

1. B Atomic Infringement Provisions. If B Atomic receives information about an infringement or misappropriation claim related to any of the Deliverables, B Atomic may in its discretion and at no cost to Customer (i) modify the Deliverables so that they are no longer claimed to infringe or misappropriate, without breaching B Atomic’s warranties under this Agreement, (ii) obtain a license for Customer’s continued use of that Deliverable in accordance with this Agreement, or (iii) terminate Customer’s right to use that Deliverable upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the use for such Deliverable. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Deliverables are the basis of the Claims; (2) a Claim arises from the use or combination of the Deliverables or any part thereof with software, hardware, data, or processes not provided by B Atomic, if the Deliverables or use thereof would not infringe without such combination; (3) a Claim arises from Deliverables under a Purchase Order for which there is no charge; or (4) a Claim arises from a Non-B Atomic Application or Customer’s breach of this Agreement.

1. Indemnification by Customer. Customer shall defend, indemnify, and hold harmless B Atomic, its affiliates, subsidiaries and their respective officers, directors, owners, members, managers, agents, employees and the respective permitted successors and assigns of each of the foregoing (the “B Atomic Indemnitees”) from and against all Claims to the extent based on or arising from (a) any breach of this Agreement by Customer; and (b) any claim arising from Customer’s failure to comply with any open source or third party license; provided B Atomic (i) promptly gives Customer written notice of any Claims against B Atomic, (ii) gives Customer sole control of the defense and settlement of the Claims (except that Customer may not settle any Claims unless it unconditionally releases B Atomic of all liability), and (iii) gives Customer all reasonable assistance, at Customer’s expense.

1. Exclusive Remedy. This Section 9 states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other party for any third-party claim described in this section.

1. LIMITATION OF LIABILITY

1. Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE DELIVERABLES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER'S AND ITS AFFILIATES’ PAYMENT

OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.

1. Exclusion of Certain Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE
   

THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.

1. Exceptions. THE FOREGOING LIMITATIONS WITHIN THIS SECTION 9 SHALL NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 WITH RESPECT TO A THIRD PARTY CLAIM.

1. TERM AND TERMINATION

1. Term of Agreement. This Agreement and Customer’s right to use the Deliverables shall commence on the date B Atomic makes the Deliverables available to the Customer (the “Effective Date”) and shall continue for a term of twelve (12) months (the “Term”), unless terminated pursuant to this Agreement. This Agreement shall automatically renew for successive twelve month terms (each a “Renewal Term”) unless either party notifies the other party of its intent not to renew the Agreement and the Term, or the applicable Renewal Term, in writing at least thirty (30) days prior to the end of the then-current Term or Renewal Term.  Notice of non-renewal may be provided to B Atomic via email to pat@batomic.com.  

1. Termination. Either Party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If this Agreement is terminated by Customer pursuant to this paragraph, B Atomic will refund Customer any prepaid fees covering the remainder of the Term of all Purchase Orders after the effective date of termination. If this Agreement is terminated by B Atomic pursuant to this paragraph, Customer will pay any unpaid fees covering the remainder of the Term of all Purchase Orders. In no event will termination relieve Customer of its obligation to pay any fees payable to B Atomic for the period prior to the effective date of termination.

1. GENERAL PROVISIONS

1. Entire Agreement and Order of Precedence. This Agreement and the applicable Purchase Order(s) are the entire agreement between B Atomic and Customer regarding Customer’s use of the Deliverables and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Purchase Order, (2) any exhibit, schedule or addendum to this Agreement, (3) the body of this Agreement, and (4) the Documentation.

1. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.

1. Assignment. Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the other party’s prior written consent; provided, however, either party may assign this Agreement in its entirety, without the other party’s consent, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successor and permitted assigns.

1. Counterparts. This Agreement may be executed in one or more counterparts, which shall together constitute a single agreement. In the event of execution of more than one counterpart of this Agreement, B Atomic is expressly authorized to remove the signature pages from each such counterpart and attach all such signature pages to a single counterpart of this Agreement.

1. Further Assurances. Each of the Parties agrees, at any time and from time to time, upon the reasonable request of any other Party, to do, execute, acknowledge, and deliver, or cause to be done, executed, acknowledged, and delivered, all such further acts, documents, and instruments as may be required to effectuate any of the transactions contemplated by this Agreement.

1. Affiliates.  Any rights which may be exercised by Customer hereunder or under an applicable Purchase Order may be exercised by any Affiliate of Customer, subject to all applicable legal and regulatory requirements.  Customer shall be responsible for ensuring that its Affiliates comply with the obligations set forth in this Agreement and any applicable Purchase Order, and shall be liable for all acts and omissions of such Affiliates thereunder.

2. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation hereunder (other than payment) if the delay or failure is due to strikes, blockade, war, revolutions, riots, natural disasters, pandemics, failures of telecommunication services or the Internet, acts or omissions of third parties, or similar unforeseen events which are beyond the reasonable control of the non-performing party (“Force Majeure Event”). Such delay or failure shall be excused solely to the extent that such Force Majeure Event prevents or delays the affected party from fulfilling its obligations. Upon the cessation of a Force Majeure Event, the affected party shall promptly resume its performance of any suspended obligations.

1. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, and permitted assigns.

1. Domo Service Agreement. This Agreement is subject to the terms and conditions of the Domo Service Agreement in pertinent part, which are set forth at https://www.domo.com/company/saas-saas-service-terms and attached hereto as Exhibit A.  Customer shall comply with those terms and conditions imposed on the “Permitted Third Parties” and “End Customers” under the Domo Service Agreement.   

1. Governing Law. This Agreement shall be governed by and construed in accordance with laws of the State of Ohio (regardless of the laws that might be applicable under principles of conflicts of laws) as to all matters, including but not limited to matters of validity, construction, effect, and performance.

1. Dispute Resolution. Any dispute arising out of or relating to this Agreement including the breach, termination or validity thereof shall be resolved pursuant to the following three-step process: (1) negotiation by senior executives who have authority to settle the controversy (such negotiation shall take place within thirty (30) days from the date of written notice requesting negotiation); (2) if such negotiations do not resolve the dispute, then mediation conducted in accordance with the commercial rules and procedures of the American Arbitration Association; and (3) if such medication does not resolve the dispute, binding arbitration conducted in accordance with the commercial rules and procedures of AAA Arbitration. Any such mediation or arbitration hearings shall be conducted in Cleveland, Ohio. Judgment on any arbitration award may be entered by any court having jurisdiction thereof. All Arbitration awards are binding and non-appealable, except as otherwise provided in the United States Arbitration Act.

1. Severability. In the event any sentence or paragraph of this Agreement is declared by a court of competent jurisdiction to be void, that sentence or paragraph shall be deemed severed from the remainder of this Agreement, and the balance of the Agreement shall remain in effect.

1. Headings. The headings used in this Agreement are for convenience only and shall be ignored in interpreting this Agreement.

1. Waiver. No failure by any Party to insist upon the strict performance of any covenant, duty, agreement, or condition of this Agreement or to exercise any right or remedy hereunder shall constitute waiver of any breach or any other covenant, duty, agreement, or condition.

1. Amendment; Termination. This Agreement shall be changed, modified, terminated, cancelled, or amended only by a writing signed by each of the then parties to this Agreement.

1. Notices. Any and all notices, and other documents and communications, permitted or required to be given pursuant to this Agreement will be deemed duly given: (i) upon actual delivery, if delivery is by hand or courier service; or (ii) upon the third day following delivery into the U.S. mail if delivery is by registered or certified return receipt requested mail. Each such notice will be sent to the respective party at the address the respective party may designate by notice delivered pursuant hereto. All notices to B Atomic shall be sent to 33159 Solon Rd. Solon, Ohio 44139, Attn: Seth Zaremba. All notices to Customer shall be sent to such address provided by Customer, all notices to Customer shall be sent to any Customer office or place of business.

EXHIBIT A

DOMO SOFTWARE AS A SERVICE AGREEMENT

This Agreement governs your license to and use of our services.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, EXECUTING A SERVICE ORDER THAT REFERENCES THIS AGREEMENT, OR USING ANY SUBSCRIPTION SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES. IF YOU REGISTER FOR USE OF A FREE TRIAL OR FREE VERSION OF THE SUBSCRIPTION SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT ALSO GOVERN YOUR USE OF THOSE SERVICES.

1. DEFINITIONS

1.1 "Affiliate" means, with respect to a specified entity, any other entity that, directly or indirectly, controls, is controlled by or is under common control with such entity (but only for so long as such control exists), where "control" means the ownership of more than 50% of the outstanding shares or securities representing the right to vote in the election of directors or other managing authority of such entity.

1.2 "Agreement" means this Domo Software as a Service Agreement.

1.3 "Authorized User" means your employee, your Affiliate’s employee, or a Permitted Third Party’s employee, for whom you create a unique login under your account.

1.4 "Documentation" means our user documentation, in all forms, relating to the Subscription Services (e.g., user manuals, on-line help files, etc.).

1.5 "Effective Date" means the earlier of (a) the effective date of the first Service Order referencing this Agreement and (b) the date you first access a Subscription Service.

1.6 "Installed Software" means software components made available by us to be installed on your or Authorized Users’ computer systems or devices, including but not limited to Domo Workbench.

1.7 "Non-Domo App" means a software application developed by you or by a third party that interoperates with the Subscription Services and may be listed in the Domo Appstore.

1.8 "Permitted Third Party" means an entity under contract with you or your Affiliates that needs to access the Subscription Services to perform its obligations to you or your Affiliates and is not our competitor.

1.9 "Professional Services" means the professional services specified in a Service Order, which may include, without limitation, implementation, configuration, consulting, and training services.

1.10 "Service Order" means an ordering document entered into between you or your Affiliate and us (or our authorized reseller) specifying the services to be provided thereunder, including any exhibits, addenda and supplements thereto and any amendments and renewals thereof. By entering into a Service Order under this Agreement, your Affiliate agrees to be bound by the terms of this Agreement as if it were an original party to this Agreement.

1.11 "Services" means, collectively, the Subscription Services, Technical Support Services, Professional Services, and any other services identified in a Service Order or accessed by you through Domo’s online order or registration process.

1.12 "Subscriber Data" means any data uploaded into the Subscription Services, or otherwise provided for processing by the Subscription Services, by or on behalf of you or your Affiliates in accordance with this Agreement.

1.13 "Subscription Fees" means the fees payable for the Subscription Services.

1.14 "Subscription Services" means Domo's cloud-based platform service (also referred to as the Domo Service or Domo Platform), and any other subscription services provided by us, as identified in a Service Order, as we may modify the services from time to time in our discretion. If you are accessing a Domo cloud-based service through online provisioning or an online registration or order process, then the "Subscription Services" are the Domo cloud-based services you access through such means.

1.15 "Technical Support Services" means our then-current technical support services offering, as described at https://www.domo.com/company/support-package. Unless otherwise specified in the applicable Service Order, our Standard support package applies to the Subscription Services.

1.16 "We" or "Us" or "Our" or "Domo" means Domo, Inc., a Utah corporation, or its designated Affiliate as specified in a Service Order or invoice.

1.17 "You" or "Your" or "Subscriber" means the subscriber named on the Service Order or, for online orders, the company or other legal entity on whose behalf the individual indicating acceptance of this Agreement is acting. Any of Subscriber’s Affiliates may enter into a Service Order that references this Agreement directly with Domo and, for purposes of such Service Order, the Affiliate signing the Service Order will be considered “you,” “your,” and “Subscriber.”

2. FREE TRIALS AND FREE VERSIONS

2.1 Free Trials and Free Versions Defined. From time to time, we may offer trials of the Subscription Services for a specified period of time without payment or at a reduced rate (each, a "Free Trial"). We also may provide certain versions of the Subscription Services to you free of charge. The versions of the Subscription Services that do not require payment to be accessed are referred to as "Free Versions."

2.2 Terms Specific to Free Trials and Free Versions. If you register on our website or via a Service Order for a Free Trial, we will make the Subscription Services available to you under the Free Trial until the earlier of: (a) the end of the Free Trial period for which you registered to use the Subscription Services; (b) the start date of a paid subscription for such Subscription Services under a Service Order; or (c) termination by us in our sole discretion. Additional Free Trial terms and conditions may appear on the Free Trial registration web page and are incorporated into this Agreement by this reference and are legally binding. We reserve the right, in our sole discretion, to determine your eligibility for a Free Trial, and to withdraw or to modify a Free Trial at any time without prior notice and with no liability, to the greatest extent permitted under applicable laws. You may use the Subscription Services provided under a Free Trial solely for the purpose of evaluating the Subscription Services to determine whether to purchase a paid subscription for such Subscription Services. You may not use the Subscription Services provided under the Free Trial for any other purpose, including for competitive analysis. ANY DATA YOU ENTER INTO THE SUBSCRIPTION SERVICES, AND ANY CONFIGURATION CHANGES MADE TO THE SUBSCRIPTION SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A PAID SUBSCRIPTION TO THE SAME SUBSCRIPTION SERVICES PROVIDED UNDER THE FREE TRIAL, OR YOU EXPORT SUCH DATA, BEFORE THE END OF THE FREE TRIAL PERIOD. NOTWITHSTANDING SECTION 9 (WARRANTIES AND DISCLAIMER) OF THIS AGREEMENT, FREE TRIALS AND FREE VERSIONS OF THE SUBSCRIPTION SERVICES ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY. DOMO WILL HAVE NO DEFENSE OR INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 (DOMO INDEMNIFICATION) WITH RESPECT TO FREE TRIALS OR FREE VERSIONS.

3. USE OF THE SUBSCRIPTION SERVICES

3.1 Permitted Use. Subject to the terms and conditions of this Agreement and the applicable Service Order, we grant to you a limited, worldwide, non-exclusive, non-transferable (except as expressly permitted in this Agreement) right during the term of the applicable Service Order to: (a) use the Subscription Services solely for your and your Affiliates’ internal business operations; (b) install the Installed Software on your or your Affiliates’ computer system or other devices for use solely to facilitate your authorized use of the Subscription Services; and (c) use internally, and reproduce without modification, a reasonable number of copies of the Documentation solely in connection with your authorized use of the Subscription Services. Your rights to use the Subscription Services and Installed Software are subject to any scope and usage limitations set forth in the applicable Service Order, which may include, without limitation, limits on the number of users, data storage rows, and/or connectors (collectively, the "Scope Limitations"), and your compliance with all terms of this Agreement and the applicable Service Order. You agree to use the Subscription Services within, and are solely responsible for ensuring that you do not exceed, the Scope Limitations. If you exceed any of the Scope Limitations set forth in a Service Order, we may invoice you and you agree to pay for the excess usage at Domo’s then-current rates.

3.2 Use Restrictions. Except as may be expressly permitted by applicable law, you will not, and will not permit your Affiliates or any third parties to: (a) sell, rent, lease, or, except as expressly permitted in this Agreement or an applicable Service Order, license, sublicense, distribute, or otherwise permit third parties to access or use the Subscription Services, Installed Software, or Documentation; (b) except as expressly permitted in this Agreement or an applicable Service Order, use the Subscription Services to provide services to third parties as a service bureau or for time sharing or service provider purposes; (c) circumvent or disable any security or other technological features or measures of the Subscription Services or Installed Software, or attempt to probe, scan or test the vulnerability of a network or system, breach security or authentication measures, or gain unauthorized access to any service, system or network; (d) upload or provide for processing, or use the Subscription Services to store, display or transmit, any information or material that is illegal, defamatory, offensive, abusive, obscene, or tortious, or that violates privacy or intellectual property rights; (e) use the Subscription Services to harm, threaten, or harass another person or organization or in any way that violates applicable laws or regulations; (f) use the Subscription Services to create, send, store, run, or distribute any viruses, worms, Trojan horses, or other disabling code, malware component, or code or program harmful to a network or system; (g) copy, reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Subscription Services or any feature or function thereof, or any Installed Software; (h) access the Subscription Services or Installed Software for the purpose of monitoring availability, performance or functionality or for any benchmarking or other competitive purpose; (i) alter nor remove any trademark, copyright notice, or other proprietary rights notice that may appear in any part of the Subscription Services, Installed Software, or Documentation (and you will include all such notices on any copies, including any reports printed via the use of the Subscription Services); or (j) use the Subscription Services in excess of the Scope Limitations. You are solely responsible for your conduct (including by and between all users) and all communications with others while using the Subscription Services.

3.3 Authorized Users Only. This Agreement restricts the use of the Subscription Services and Installed Software to Authorized Users, up to the number of users specified in the applicable Service Order. An Authorized User license or account must not be shared among users. You may allow your Affiliates and Permitted Third Parties to access and use the Subscription Services as Authorized Users in accordance with, and subject to the terms and conditions of, this Agreement and the applicable Service Order; provided, however, that Authorized Users who are employees of Permitted Third Parties may access and use the Subscription Services solely to perform the Permitted Third Party’s contractual obligations to you. As part of the registration process, you may be asked to identify your company and Authorized Users who should be associated with your account. You will not misrepresent the identity or nature of the company or Authorized Users who should be associated with your account. You are responsible for maintaining the confidentiality of your logins and account and for all activities that occur under your logins and account, including the activities of Authorized Users.

3.4 Protection Against Unauthorized Use. You will, and will ensure that your Affiliates and Permitted Third Parties, use reasonable efforts to prevent any unauthorized use of the Subscription Services, Installed Software, or Documentation, and you will promptly notify us in writing of any unauthorized use that comes to your attention. If there is unauthorized use by anyone who obtained access to the Subscription Services, Installed Software, or Documentation directly or indirectly through you, your Affiliate, or a Permitted Third Party, you will take all steps reasonably necessary to terminate the unauthorized use. You will cooperate and assist with any actions taken by us to prevent or terminate unauthorized use of the Subscription Services, Installed Software, or Documentation. We may remotely monitor your use of the Subscription Services to verify that your use complies with the Scope Limitations and other terms of this Agreement and any Service Orders. You will ensure that your Affiliates and Permitted Third Parties comply with the terms of this Agreement and all Service Orders and you will be directly and fully responsible to us for their conduct and any breach of this Agreement or any Service Order by them.

3.5 Domo Everywhere Subscription Services. If the Subscription Services under a Service Order include a subscription to the Domo Everywhere service, you may permit entities that are your customer, vendor or partner that have an existing contractual relationship with you and are not our competitor ("End Customers") to access and use the end customer accounts specified in the applicable Service Order solely for their internal business purposes in connection with the standard business conducted between you and the End Customer, and subject to any additional terms and limitations set forth in the Service Order. Only as to Domo Everywhere end customer accounts, End Customers are considered Permitted Third Parties under this Agreement, and all obligations and restrictions under this Agreement with respect to Permitted Third Parties apply.

3.6 Beta Versions. From time to time, we may make available for you to try, at your sole discretion, certain functionality, features, software, or services related to the Subscription Services which are clearly designated as beta, pilot, limited release, non-production, or by a similar description (each, a "Beta Version"). Beta Versions are intended for evaluation purposes only and are not for production use, are not supported, and may be subject to additional terms and limitations. We may discontinue Beta Versions at any time in our sole discretion and may choose to never make them generally available. Notwithstanding Section 9 (Warranties and Disclaimer) of this Agreement, Beta Versions are provided “AS-IS” without any warranty. We will have no defense or indemnification obligations under Section 10 (Domo Indemnification) with respect to Beta Versions and no liability for any harm or damage arising out of or in connection with Beta Versions.

3.7 Reservation of Rights. Domo and its licensors retain exclusive ownership of all right, title, and interest, including all intellectual property rights, in, to and under the Subscription Services, Installed Software, and Documentation, all apps, cards and other add-ons to the Subscription Services, and any deliverables created by us as part of the Services, together with all modifications, updates, customizations, enhancements, improvements, and derivative works of any of the foregoing (collectively, "Domo Technology"). Your rights to use the Subscription Services and other Domo Technology are limited to those expressly set forth in this Agreement and the applicable Service Order and no other rights (express, implied, by estoppel, through exhaustion, or otherwise) are granted to you. We reserve all other rights in and to the Domo Technology. Any Subscription Services or other Domo Technology delivered to you or to which you may have access will not be deemed to have been sold, even if, for convenience, we make reference to words such as "sale" or "purchase" in a Service Order or other documents.

3.8 Service Availability. We perform and maintain regular database backups according to our retention policy appropriate for the particular system. We incorporate database and system maintenance operations and processes designed to address data consistency, indexing, and integrity requirements and that also help improve query performance. We have implemented and will maintain commercially reasonable measures intended to avoid unplanned interruptions to the Subscription Services. We will use commercially reasonable efforts to notify you in advance of planned interruptions to the Subscription Services. In the event of an unplanned interruption, you may contact us for Technical Support Services. The Subscription Services depend on the availability of Subscriber Data from you and third-party data providers. You are responsible for making the Subscriber Data available as is necessary for us to provide the Subscription Services. We reserve the right, upon reasonable notice, to change the way you access the Subscription Services or to deactivate, change, or require you to change user IDs, the domain name associated with your account, and any custom or vanity URLs, links or domains you may obtain through the Subscription Services.

4. PROFESSIONAL SERVICES AND TECHNICAL SUPPORT SERVICES

4.1 Professional Services. You may contract with us to perform Professional Services. The specific details of the Professional Services to be performed will be determined on a per-project basis, and the Professional Services for each project will be described in a Service Order. Domo grants you a license to use any Domo Technology delivered as part of the Professional Services under the same terms of your license to use the Subscription Services. You are responsible for any actual travel expenses we incur in providing Professional Services. Unless otherwise specified in the applicable Service Order, any unused portion of Professional Services hours/days will expire, and may not be carried over after, 12 months from the Service Order effective date.

4.2 Changes to Professional Services. You may request in writing that reasonable revisions be made with respect to the Professional Services set forth in a Service Order. If your requested revisions materially increase the scope of the Professional Services or the effort required to perform the Professional Services under the Service Order, then we will deliver to you a written proposal reflecting our reasonable determination of the revised Professional Services, delivery schedule, and payment schedule, if any, that applies to the requested revisions. If you approve the proposal, then the parties will execute an amendment to the Service Order. Otherwise, the then-existing Service Order will remain in full force and effect, and we will have no obligation with respect to the relevant change request.

4.3 Technical Support Services. We will provide you with the applicable Technical Support Services for the version of the Subscription Service to which you are subscribed.

4.4 Your Responsibilities. You will provide us with assistance, cooperation, information, equipment, data, a suitable work environment, and resources reasonably necessary to enable us to perform the Professional Services and Technical Support Services. You acknowledge that our ability to provide Professional Services and Technical Support Services may be affected if you do not meet your responsibilities as set forth in this Agreement or the applicable Service Order. Our obligation to perform Professional Services and Technical Support Services is subject to your payment of the applicable fees.

4.5 Feedback. You, your Affiliates, and Permitted Third Parties may, on an entirely voluntary basis, submit feedback, user community contributions and comments, technical support information, suggestions, enhancement requests, recommendations, and messages relating to the operations, functionality, or features of the Subscription Services or other Domo products or services (collectively, "Feedback"). You grant us a royalty-free, fully paid, non-exclusive, perpetual, irrevocable, worldwide, transferable license to display, use, incorporate into the Subscription Services, copy, modify, publish, perform, translate, create derivative works from, sublicense, distribute, and otherwise exploit Feedback without restriction. Feedback is not Subscriber Confidential Information.

5. FEES AND PAYMENT

5.1 Fees and Payment Terms. You agree to pay all fees set out in a Service Order and any other amounts payable under this Agreement. Except as otherwise expressly provided in this Agreement or the applicable Service Order, upon both parties’ execution of a Service Order, the Service Order is non-cancellable and the fees are non-refundable and based on Services purchased, not actual usage. The initial term specified in a Service Order is a non-divisible, continuous commitment, regardless of the invoice schedule, and pricing is based on purchase of the Services in the specified quantity and configuration for the entire initial term (or applicable renewal term). Unless otherwise specified in the applicable Service Order (a) Subscription Fees and fees for any Professional Services, Technical Support Services, and other Services are due annually in advance; (b) all invoiced amounts are due in full within 30 days from the invoice date (regardless of the date of approval of any purchase order); and (c) Subscription Fees for each renewal term will be invoiced and payable at Domo’s rates in effect at the time of renewal. Notwithstanding anything to the contrary, any renewal of Subscription Services at a lower volume or for a changed configuration will result in re-pricing at renewal without regard to the prior term’s per-unit pricing. Any purchase order you submit is for your own internal purposes and any purchase order terms that add to or in any way conflict with the terms of this Agreement or the applicable Service Order are rejected and will have no effect. At your request, we will reference the purchase order number on our invoices (solely for your administrative convenience), so long as you provide us with the purchase order number at least 15 days before the invoice date. The charges in an invoice will be considered accepted by you unless we are notified of a good faith dispute in writing within 15 days of the date of the invoice. Unless expressly provided otherwise in the applicable Service Order, all amounts payable under this Agreement are denominated and must be paid in United States dollars. You must provide accurate and complete billing information and keep all such information current.

5.2 Credit Card Payments. If you use a credit card to set up an account or pay for any of the Services, you must be authorized to use the credit card information that you enter when you create the billing account. You authorize us to charge your credit card for the Services for the initial term and any renewal terms of a Service Order as provided in Section 5.1, plus a reasonable processing fee. We may charge your credit card (a) in advance; (b) at the time of purchase; (c) shortly after purchase; and/or (d) on a recurring basis for a subscription to the Subscription Services. If you set up a Free Trial using a credit card, you agree that we may automatically charge your credit card the applicable Subscription Fees plus a reasonable processing fee when the Free Trial ends unless you cancel your subscription before the end of the Free Trial.

5.3 Late Payment. Without limiting our other rights or remedies, any amount not subject to a good faith dispute and not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded monthly from the date due until the date paid, and you will reimburse us for any costs or expenses (including but not limited to reasonable attorneys’ fees) incurred by us to collect any such amount. Amounts due from you under this Agreement or a Service Order may not be withheld or offset by you against amounts due to you for any reason.

5.4 Taxes. The fees stated in a Service Order do not include local, state, federal, or foreign taxes (e.g., value-added, sales, or use taxes), or fees, duties, or other governmental charges resulting from this Agreement or any Service Order ("Taxes"). You are responsible for paying all applicable Taxes, excluding taxes on Domo’s net income or property. If we determine that we have the legal obligation to pay or collect such Taxes, we will add such Taxes to the applicable invoice and you will pay such Taxes, unless you provide us with a valid tax exemption certificate from the appropriate taxing authority. If a taxing authority subsequently pursues us for unpaid Taxes for which you are responsible under this Agreement and which you did not pay to us, we may invoice you and you will pay such Taxes to us or directly to the taxing authority, plus all applicable interest, penalties and fees.

5.5 Future Functionality. Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding future functionality or features.

6. TERM AND TERMINATION

6.1 Term. This Agreement commences on the Effective Date and continues until terminated in accordance with the terms of Section 6.2. Each Service Order commences on the effective date specified in the Service Order and, unless earlier terminated for cause pursuant to Section 6.2, continues for the initial term specified in such Service Order and any renewal terms. Unless otherwise specified in the applicable Service Order, each Service Order will automatically renew for additional successive one-year terms unless at least 30 days before the end of the then-current term either party provides written notice to the other party of non-renewal.

6.2 Termination. Either party may terminate this Agreement upon 30 days’ written notice if at the time of notice there are no Service Orders then in effect. Either party may terminate this Agreement or an applicable Service Order for cause immediately upon written notice if the other party does not cure its material breach of this Agreement or the applicable Service Order within 30 days of receiving written notice of the breach from the non-breaching party. Termination of this Agreement for cause will terminate all Service Orders then in effect. If you fail to timely pay any Subscription Fees or other fees owing under this Agreement or a Service Order, we may, without limitation to any of our other rights or remedies, suspend performance of the Services until we receive all amounts due, or terminate this Agreement or the applicable Service Order pursuant to this Section 6.2. We may terminate your license to use Free Versions, Free Trials or Beta Versions at any time in our sole discretion.

6.3 Effect of Termination. If this Agreement or an applicable Service Order is terminated for any reason: (a) we have no obligation to provide or perform any Services after the effective date of the termination; (b) you will immediately pay to us any Subscription Fees, fees for Professional Services, and other amounts that have accrued prior to the effective date of the termination; (c) any and all liabilities accrued prior to the effective date of termination will survive; (d) if requested by us, you will provide us with a written certification signed by your authorized representative certifying that all use of the Subscription Services and Documentation by you, your Affiliates, and Permitted Third Parties has been discontinued and the Installed Software has been de-installed from your and your Affiliates’ computer systems; and (e) Sections 2.2, 3.7, 4.5, 5, 6.3, 7, 8.3, 8.4, 8.5, 9.3, 11, 12, 13 and 14 will survive termination. If this Agreement or a Service Order is terminated by us for your uncured material breach, or by you other than as a result of Domo’s material uncured breach, you will pay us the amounts due under all terminated Service Orders for the remainder of the relevant term. If you terminate this Agreement or a Service Order for Domo’s uncured material breach, as your exclusive remedy, we will provide you a pro-rata refund of all prepaid, unused Subscription Fees for the remainder of the relevant term. If requested by you in writing prior to the effective date of termination of this Agreement or an applicable Service Order, we will make the relevant instance of the Domo Platform accessible to you at no additional charge for a period of 30 days after the effective date of termination for the sole limited purpose of downloading or exporting Subscriber Data. We have no obligation to retain Subscriber Data after such 30-day period and we may, unless legally prohibited, thereafter delete all Subscriber Data in our possession or control.

7. CONFIDENTIAL INFORMATION

7.1 Definition. "Confidential Information" means any non-public business information, know-how, trade secrets, and other information, in any form, that is designated as confidential or that a reasonable person should understand to be confidential due to the nature of the information or the circumstances of disclosure, and is disclosed by or on behalf of either party or its Affiliates (the “disclosing party”) to the other party or its Affiliates (the “receiving party”), directly or indirectly, in writing, orally, or by inspection of tangible objects, whether before or after the Effective Date. Confidential Information includes, without limitation, Subscriber Data (which is your Confidential Information), and information regarding the Subscription Services, Domo Technology, Beta Versions, our systems and networks, product plans, security information and assessments, audit reports, pricing information, and the terms of this Agreement and any Service Order (all of which is our Confidential Information). Notwithstanding anything to the contrary, “Confidential Information” excludes information that: (a) is or becomes generally publicly available through no action or inaction of the receiving party; (b) is already in the possession of the receiving party on a non-confidential basis at the time of disclosure by the disclosing party, as shown by the receiving party’s written records or other competent evidence in the receiving party’s possession; (c) is obtained by the receiving party on a non-confidential basis from a third party without, to the receiving party’s knowledge, a breach of the third party’s obligations of confidentiality; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by written records or other competent evidence in the receiving party’s possession.

7.2 Maintenance of Confidentiality. The receiving party agrees to hold in confidence and not disclose to any third party, except as expressly permitted under this Agreement, Confidential Information of the disclosing party, and to take reasonable steps, substantially equivalent to the steps it takes to protect its own confidential information of like nature, but no less than reasonable steps, to prevent the unauthorized use or disclosure of the disclosing party’s Confidential Information. The receiving party may disclose the disclosing party’s Confidential Information to the receiving party’s and its Affiliates’ employees or agents who reasonably need to have access to such information to perform the receiving party’s obligations under this Agreement or any Service Order and are bound by obligations of confidentiality and nonuse at least as restrictive as the terms of this Agreement. In addition, you may disclose our Confidential Information to Permitted Third Parties to the extent required for the Permitted Third Parties to be able to access and use the Subscription Services pursuant to this Agreement, and we may disclose your Confidential Information to our subcontractors in connection with performance of the Services; provided, however, that such Permitted Third Parties and subcontractors must be bound by obligations of confidentiality and nonuse at least as restrictive as the terms of this Agreement. The receiving party may disclose the disclosing party’s Confidential Information to the extent required by law so long as the receiving party: (a) gives the disclosing party written notice of the requirement prior to the disclosure (where permitted) and reasonable assistance, at the disclosing party’s expense, in limiting disclosure or obtaining an order protecting the Confidential Information from public disclosure; and (b) in the event Confidential Information is nevertheless required to be disclosed, discloses only such portion of Confidential Information as is advised by its counsel to be legally required, and takes reasonable steps to obtain confidential treatment of the Confidential Information so disclosed.

7.3 Return of Confidential Information. Upon written request of the disclosing party, the receiving party will promptly return to the disclosing party or destroy all materials, in any medium, to the extent containing or reflecting any of the disclosing party’s Confidential Information. The obligations in this Section 7 survive for three years following expiration or termination of this Agreement, except that Confidential Information that is non-public personally identifiable information or that constitutes a trade secret or proprietary technology of the disclosing party will continue to be subject to the confidentiality obligations of this Section 7 for as long as such information remains Confidential Information or a trade secret.

8. DATA SECURITY

8.1 Data Security. We implement and maintain reasonable administrative, physical, and technical safeguards intended to protect against the unauthorized access, use, disclosure, alteration, or destruction (other than by you or Authorized Users) of Subscriber Data. These measures include encryption of Subscriber Data during transmission to the Subscription Services, encryption of backups of Subscriber Data, and encryption of Subscriber Data and authentication credentials at rest, utilizing industry standard cryptography and key management practices. We will promptly notify you following our discovery of any unauthorized access to, or use, disclosure, alteration or destruction of, Subscriber Data (a "Security Breach"). In the event of a Security Breach caused by our breach, we will cooperate with you in good faith to investigate the cause of the Security Breach, to take reasonable steps to prevent any future reoccurrence, and to enable you to comply with applicable data breach notification laws.

8.2 Data Protection Agreement. The terms of Domo’s data processing addendum at https://www.domo.com/company/dpa ("DPA"), together with the Standard Contractual Clauses and Appendices, form a part of and are hereby incorporated into this Agreement by this reference and apply to the extent Subscriber Data includes Personal Data (as this term is defined in the DPA). In the event we transfer Personal Data from the European Economic Area (EEA), the United Kingdom and/or Switzerland, the Standard Contractual Clauses or another adequate means of protection will apply, as further set forth in the DPA. For the purposes of the Standard Contractual Clauses, Subscriber and its applicable Affiliates are each the data exporter, and your acceptance of this Agreement, and your Affiliate's execution of a Service Order, will be treated as your or your applicable Affiliate’s execution of the Standard Contractual Clauses and Appendices.

8.3 Data Transmission. You acknowledge that use of the Subscription Services involves transmission of Subscriber Data and other communications over the internet and other networks, and that such transmissions could potentially be accessed by unauthorized parties. You must protect your Authorized User logins from access or use by unauthorized parties, and you are solely responsible for any failure to do so. You must promptly notify us of any suspected security breach at security@domo.com. You are fully responsible, and Domo has no liability, for any viruses, worms, Trojan horses, or other disabling code, malware component, or code or program harmful to a network or system contained in or originating from Subscriber Data.

8.4 Subscriber Data. Subscriber Data is your property and, as between you and us, you retain exclusive ownership of all right, title and interest in Subscriber Data. You grant us a non-exclusive, worldwide, royalty-free license to use, copy, transmit, sublicense, index, store, aggregate, publish, distribute, and display: (a) Subscriber Data as required to provide or perform the Services and account management services; and (b) de-identified, aggregated information derived from Subscriber Data and from your use of the Subscription Services for purposes of improving our products and services, and developing, displaying, and distributing benchmarks and similar reports, provided that any such data is not publicly identified or identifiable as originating with or associated with you or any individual person. You are responsible for the content, accuracy, availability, appropriateness, and legality of Subscriber Data and any other information you may access using the Subscription Services and for your use of Subscriber Data with the Services.

8.5 Personal & Sensitive Personal Data. You have control over the type and content of Subscriber Data; provided, however, that it must be specified within the applicable Service Order or you must otherwise obtain Domo’s advance written approval if you intend to upload any Sensitive Personal Data to, or otherwise provide any Sensitive Personal Data for processing by, the Subscription Services. You acknowledge and agree that, notwithstanding anything to the contrary, Domo will have no liability with respect to Sensitive Personal Data unless the Service Order specifies that Personal Sensitive Data will be uploaded or you otherwise obtain such approval. You also acknowledge and agree that Domo is not compliant with the Payment Card Industry Data Security Standards (PCI DSS) and, as such, in no case will you upload financial account or payment card information. “Sensitive Personal Data” means an individual’s (a) financial account or payment card information; (b) patient, medical or other protected health information; (c) personal information of children protected under child protection laws; (d) social security, national identity, or similar personal identifiers; (e) “special categories of personal data” as defined under the General Data Protection Regulation, Regulation (EU) 2016/679 (GDPR); and (f) any other sensitive personal data as such term (or a similar term) is defined under applicable privacy or data protection laws. You represent and warrant that you will comply with all applicable laws, regulations, self-regulatory guidelines, and your privacy policy with respect to your use of the Subscription Services and your collection, transfer, use, distribution, and display of any personal information in connection with the Subscription Services, including proper disclosure to and receipt of all required consents from each individual to transfer such personal information to us and to allow us to use, disclose and otherwise process such information for the purpose of providing the Services, which may include transferring or disclosing such information outside the individual’s jurisdiction (including to the U.S.).

9. WARRANTIES AND DISCLAIMER

9.1 Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement and each Service Order constitutes a valid and binding agreement enforceable against it in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with such party’s execution and delivery of any Service Order or performance of this Agreement.

9.2 Our Warranty. We warrant that the Subscription Services as delivered to you by us will materially conform to the specifications set forth in the applicable Service Order during the term of the applicable Service Order. You must notify us of a claim under this warranty within 30 days of the date on which you first become aware of the condition giving rise to the claim. We further warrant that we will perform Professional Services in a professional and workmanlike manner in accordance with the specifications set forth in the applicable Service Order. To the extent permitted by law, your sole and exclusive remedy arising out of or in connection with a breach of warranty is limited to correction of the non-conforming Subscription Services or re-performance of the Professional Services, as applicable, or if correction or re-performance is not commercially reasonable, termination of the applicable Service Order and a refund of any prepaid unused fees for the applicable Subscription Services or Professional Services.

9.3 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. WE EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. WE DO NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SUBSCRIPTION SERVICES OR INSTALLED SOFTWARE OR THAT THE SUBSCRIPTION SERVICES, INSTALLED SOFTWARE, OR DOCUMENTATION ARE ERROR-FREE OR THAT OPERATION OR USE OF THE SUBSCRIPTION SERVICES OR INSTALLED SOFTWARE WILL BE SECURE OR UNINTERRUPTED. WE EXERCISE NO CONTROL OVER AND EXPRESSLY DISCLAIM ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF USE OF THE SUBSCRIPTION SERVICES OR INSTALLED SOFTWARE.

9.4 High-Risk Activities. THE SUBSCRIPTION SERVICES ARE NOT DESIGNED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAILSAFE CONTROLS, INCLUDING WITHOUT LIMITATION OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATIONS SYSTEMS, AIR TRAFFIC CONTROL, OR LIFE SUPPORT OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE SUBSCRIPTION SERVICES OR INSTALLED SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. WE SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH HIGH-RISK ACTIVITIES.

10. DOMO INDEMNIFICATION

10.1 Defense and Indemnity. We will, at our expense, either defend you from or settle any claim, proceeding, or suit brought by a third party ("Claim") against you alleging that your use of the Subscription Services or Installed Software infringes or misappropriates any patent, copyright, trade secret, trademark, or other intellectual property right of such third party. We will indemnify you and your Affiliates from and pay: (a) all damages, costs, and attorneys’ fees finally awarded against you and your Affiliates in any such Claim; (b) all out-of-pocket costs, including reasonable attorneys’ fees, reasonably incurred by you in connection with the defense of any such Claim (other than attorneys’ fees and costs incurred without our consent after we have accepted defense of the Claim and expenses incurred pursuant to the last sentence of this Section 10.1); and (c) all amounts that we agree to pay to any third party to settle any such Claim. You must: (i) give us prompt written notice of the Claim; (ii) grant us full and complete control over the defense and settlement of the Claim; and (iii) provide assistance in connection with the defense and settlement of the Claim as we may reasonably request. You will not defend or settle any Claim under this Section 10.1 without our prior written consent. You may participate in the defense of the Claim at your own expense and with counsel of your own choosing on a monitoring and non-controlling basis.

10.2 Exclusions. We have no obligation under Section 10.1 for any infringement or misappropriation to the extent that it arises out of or is based upon: (a) use of the Subscription Services or Installed Software in combination with products or services not provided by us; (b) any aspect of the Subscription Services or Installed Software configured specifically for you to comply with your designs, requirements, or specifications; (c) use of the Subscription Services or Installed Software by you, your Affiliate, or any Permitted Third Party outside the scope of the rights granted in, or otherwise in violation of, this Agreement, any Service Order, the Documentation, or applicable law; (d) Subscriber Data or any materials, software, or information provided by you or by a third party; or (e) any modification of the Subscription Services or Installed Software not made by us or our subcontractors.

10.3 Infringement Remedies. In the event of any Claim under Section 10.1, we may, at our sole option and expense: (a) procure for you a license to continue using the Subscription Services or Installed Software; (b) replace or modify the allegedly infringing technology to avoid the infringement; or (c) if the foregoing are not commercially reasonable in our sole judgment, then terminate your access to and right to use the Subscription Services and license to the Installed Software and refund any prepaid, unused Subscription Fees as of the date of termination. This Section 10 states our sole and exclusive liability, and your sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third-party intellectual property right by the Subscription Services or Installed Software.

11. SUBSCRIBER INDEMNIFICATION

You will, at your expense, defend us and our Affiliates from or settle any actual or threatened Claim arising out of or based upon: (a) use of the Subscription Services by you, your Affiliates, or Permitted Third Parties in violation of the use restrictions provided under Section 3.2 of this Agreement; (b) an allegation that Subscriber Data or other materials, software, or information provided by you or on your behalf, or your collection, use, distribution, transfer or display thereof, infringes, misappropriates, or otherwise violates the rights of any person or third party or applicable law; or (c) any actual or threatened Claim brought by a Permitted Third Party arising out of or based upon your acts or omissions. You will indemnify us and our Affiliates from and pay: (i) all damages, costs, and attorneys’ fees finally awarded against us in any such Claim; (ii) all out-of-pocket costs, including reasonable attorneys’ fees reasonably incurred by us in connection with the defense of any such Claim (other than attorneys’ fees and costs incurred without your consent after you have accepted defense of the Claim and expenses incurred pursuant to the last sentence of this Section 11); and (iii) all amounts that you agree to pay to any third party to settle any such Claim. We will give you prompt written notice of the Claim and provide assistance in connection with the defense and settlement of the Claim as you may reasonably request. You may not settle any Claim against Domo unless you unconditionally release Domo from all liability. We may participate in the defense of any Claim at our own expense and with counsel of our own choosing.

12. LIMITATIONS OF LIABILITY

12.1 Disclaimer of Indirect Damages. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR LOST PROFITS, LOSS OF BUSINESS, OR COSTS ASSOCIATED WITH PROCURING SUBSTITUTE OR REPLACEMENT SERVICES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SERVICES, ANY SERVICE ORDER, OR ANY OTHER AGREEMENT ENTERED INTO BETWEEN THE PARTIES OR THEIR AFFILIATES RELATED TO THIS AGREEMENT OR THE SERVICES (INCLUDING BUT NOT LIMITED TO STANDARD CONTRACTUAL CLAUSES), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER IN AN ACTION BASED ON CONTRACT, WARRANTY, STRICT LIABILITY, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, EVEN IF THE PARTY IS APPRISED IN ADVANCE OF THE LIKELIHOOD OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE REASONABLY BEEN FORESEEN.

12.2 Cap on Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SERVICES, ANY SERVICE ORDER, OR ANY OTHER AGREEMENT ENTERED INTO BETWEEN THE PARTIES OR THEIR AFFILIATES RELATED TO THIS AGREEMENT OR THE SERVICES (INCLUDING BUT NOT LIMITED TO STANDARD CONTRACTUAL CLAUSES), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER IN AN ACTION BASED ON CONTRACT, WARRANTY, STRICT LIABILITY, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, EXCEED, IN THE AGGREGATE, THE TOTAL FEES PAID BY YOU UNDER THE SERVICE ORDER FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM. HOWEVER, THE FOREGOING CAP ON LIABILITY AND THE LIMITATIONS UNDER SECTION 12.1 WILL NOT APPLY TO YOUR OBLIGATION TO PAY ANY FEES UNDER THIS AGREEMENT OR A SERVICE ORDER, YOUR LIABILITY FOR VIOLATION OF THE USE RESTRICTIONS PROVIDED UNDER SECTION 3.2 OF THIS AGREEMENT, OR YOUR INFRINGEMENT OR MISAPPROPRIATION OF OUR INTELLECTUAL PROPERTY RIGHTS.

12.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY US TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 12 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

13. NON-DOMO PRODUCTS & SERVICES

Non-Domo Apps and any other third party products or services made available to you in connection with the Subscription Services (collectively, "Non-Domo Products/Services") are provided pursuant to, and any use by you of Non-Domo Products/Services is governed exclusively by, the terms of the applicable third-party agreement. Notwithstanding anything to the contrary in this Agreement, and regardless of whether the Non-Domo Product/Service is designated as certified by Domo, Non-Domo Products/Services are provided “AS-IS” without any warranty, and Domo specifically disclaims any obligation or liability with respect to Non-Domo Products/Services, including but not limited to any obligation to defend or indemnify under Section 10 (Domo Indemnification) and any liability for unauthorized disclosure, use, alteration, or destruction of Subscriber Data resulting from processing by Non-Domo Products/Services or their third-party providers. Domo does not guarantee the continued availability of any Non-Domo Product/Service or of any feature of the Subscription Services designed to interoperate with a Non-Domo Product/Service, and may cease providing a Non-Domo Product/Service at any time.

14. MISCELLANEOUS

14.1 Export Compliance. The Subscription Services, Installed Software, and other Domo Technology may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any government denied-party list. You further represent that you are not located, and will not access or use, or permit any Authorized User to access or use, any Domo technology in any U.S.-embargoed country or region (including but not limited to Cuba, Iran, North Korea, Sudan, Syria or Crimea), or access or use any Domo Technology in violation of any applicable U.S., local or foreign export laws or regulations.

14.2 Insurance. Each party, at its sole cost and expense, will maintain during the term of this Agreement insurance in the type and amount required by law and consistent with standard industry practices based on its business and the scope of this Agreement. Upon written request of a party, the other party will provide a certificate of insurance evidencing is insurance coverage.

14.3 Access by Competitors. You may not access the Subscription Services if you are our direct competitor, except with our prior written consent.

14.4 Patent Marking. The Subscription Services are protected by one or more claims of patents in the U.S. and elsewhere. Please see the following link for details on these patents: https://www.domo.com/company/patents.

14.5 U.S. Government Use. If the Subscription Services are licensed under a U.S. government contract, you acknowledge that the Subscription Services are a "commercial item" as defined in 48 CFR 2.101, consisting of "commercial computer software" and "commercial computer software documentation," as such terms are defined in FAR Section 2.101 and Section 252.227-7014 of the Defense Federal Acquisition Regulation Supplement (48 CFR 252.227-7014) and used in 48 CFR 12.212 or 48 CFR 227.7202-1, as applicable. You also acknowledge that the Subscription Services are "commercial computer software" as defined in 48 CFR 252.227-7014(a)(1). United States government agencies and entities and others acquiring under a U.S. government contract will have only those rights, and will be subject to all restrictions, set forth in this Agreement and any applicable Service Order.

14.6 Anti-Corruption. You represent that you have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If you learn of any violation of the above restriction, you must promptly notify our Legal Department at legal@domo.com.

14.7 Relationship. We will be and act as an independent contractor (and not as the agent or representative of you) in the performance of this Agreement and any Service Order.

14.8 Publicity. We may use your name, trademarks, and service marks to the extent necessary to fulfill our obligations under this Agreement and any Service Order or as otherwise expressly authorized in this Agreement or a Service Order. We reserve the right to use your name and trademark as a reference for marketing and promotional purposes on our website and in other communications with our existing and prospective customers. If you do not want to be listed as reference for the Subscription Services, you may send an email to legal@domo.com stating that you do not wish to be identified as a reference.

14.9 Assignment and Delegation. You may not assign any of your rights or delegate any of your obligations under this Agreement or any Service Order (in whole or in part) without our prior written consent, except upon written notice to us in connection with a change of control or merger or by operation of law. We will not assign this Agreement or any Service Order without your prior written consent except to our Affiliate or in connection with a change of control, merger, or asset sale, or by operation of law. Any purported assignment or delegation in violation of this Section will be null and void. Subject to this Section, this Agreement will be binding upon and inure to the benefit of each party’s respective permitted successors and assigns.

14.10 Subcontractors. We may use subcontractors or other third parties in carrying out our obligations under this Agreement and any Service Order. We remain responsible to you for the performance of the services that are subcontracted under this Agreement.

14.11 Notices. Any notice or consent required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or nationally-recognized overnight courier, return receipt requested and postage prepaid, to the appropriate party. Notices to Domo must be sent to Domo, Inc., 772 E. Utah Valley Drive, American Fork, UT 84003 to the attention of Chief Legal Officer. Notices are deemed given upon receipt if by certified or registered mail or one business day after it is sent if by overnight courier. The parties may agree, with respect to routine notices and approvals, to accept email delivery if such delivery is confirmed by the recipient by replying to the email as acknowledgement of receipt (an automatic reply or "read receipt" does not constitute acknowledgement). Email will not be sufficient for notices regarding a claim or alleged breach unless legal counsel of both parties expressly agree to accept email delivery with respect to the specific claim or alleged breach. Email notice (if delivery is confirmed in accordance with this Section) is deemed given the next business day after the email is sent. Either party may change its address for notices by providing notice to the other party in accordance with this Section.

14.12 Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement or a Service Order on account of, any delay or failure to perform any obligations under this Agreement or any Service Order (except for payment obligations) due to any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the cause of the delay or non-performance.

14.13 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Utah, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.

14.14 Arbitration. Any action arising out of or in connection with this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, will be determined by binding arbitration in Salt Lake County, Utah, U.S.A. by one arbitrator. The arbitration will be administered by the American Arbitration Association (AAA) pursuant to its Commercial Arbitration Rules and Mediation Procedures. Judgment upon the award rendered by an arbitrator may be entered in any court of competent jurisdiction. The prevailing party will be entitled to receive from the other party its reasonable attorneys’ fees and costs incurred in connection with any arbitration or litigation instituted in connection with this Agreement. The existence and outcome of any action or dispute will be maintained as Confidential Information of both parties. This Section does not prohibit either party from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other injunctive relief to preserve the status quo or prevent irreparable harm. Furthermore, this Section does not prohibit any action by us to collect amounts not paid to us when due.

14.15 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement or any Service Order, including but not limited to your Affiliates or Permitted Third Parties.

14.16 Waiver and Modifications. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed as a waiver of the party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice the party’s right to take subsequent action. Exercise or enforcement by either party of any right or remedy under this Agreement will not preclude the enforcement by the party of any other right or remedy under this Agreement or that the party is entitled by law to enforce. We reserve the right, at our discretion, to change the terms of this Agreement on a going-forward basis at any time. Please check the terms of this Agreement periodically for changes. If a change materially modifies your rights or obligations, you will be required to accept the modified Agreement in order to continue to use the Services. Material modifications are effective upon your acceptance of the modified Agreement. Immaterial modifications are effective upon publication. Disputes arising under this Agreement will be resolved in accordance with the version of this Agreement that was in effect at the time the dispute arose.

14.17 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Subscription Services under this Agreement is found to be illegal, unenforceable, or invalid, your right to use the Subscription Services will immediately terminate.

14.18 Headings. Headings are used in this Agreement for reference only and will not be considered when interpreting this Agreement.

14.19 Counterparts. This Agreement and any Service Order may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement. This Agreement and any Service Order may also be executed and delivered by facsimile or electronically and such execution and delivery will have the same force and effect of an original document with original signatures.

14.20 Partner Transactions. If you order our Services from a Domo reseller or other authorized partner, the terms of this Agreement apply to your receipt and use of the Services. If you do not accept the terms of this Agreement, then you must not use, or must immediately cease using, our Services.

14.21 Entire Agreement. This Agreement, together with all Service Orders, and all schedules, exhibits, and attachments to this Agreement and any Service Order, all of which are deemed incorporated into this Agreement by this reference, contain the entire agreement of the parties with respect to the subject matter of this Agreement and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to said subject matter, including any prior non-disclosure agreement between the parties or their Affiliates. If there is a conflict between the terms of this Agreement and a Service Order, the terms of the applicable Service Order will control (but only with respect to the specific Service Order). No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement or any Service Order. Neither party will be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement or any applicable Service Order (regardless of whether it would materially alter this Agreement or the applicable Service Order) that is proffered by the other party in any acceptance, confirmation, invoice, purchase order, receipt, correspondence, or otherwise, unless each party mutually and expressly agrees to such provision in writing.