Enterprise SaaS Subscription License Terms

These SaaS Subscription License Terms constitute a binding agreement by and between Jericho Security, Inc. (“Jericho”), and the customer (“Customer”) signing up via any order form, purchase order or other similar document mutually agreed by the parties (e.g., when signed if a physical document, or when entered into online via a Jericho controlled website or app online) (collectively, each, an “Order Form”), and is effective as of the date on the initial Order Form between the parties (the “Effective Date”). These Enterprise SaaS Subscription License Terms together with any Order Form(s), are collectively, referred to as the “Agreement”. WHEREAS, Jericho develops and licenses access to the hosted software application subscription service(s) as described on the applicable Order Form and as further described more fully herein (collectively, the “Service”); and WHEREAS, Customer would like to subscribe to and access the Service; NOW THEREFORE, in consideration of the foregoing premises and the mutual undertakings of the parties set forth herein, and intending to be legally bound hereby, the parties do hereby agree as follows:

1. Services.

1. 1.1. Service License Grant.   Subject to the terms and conditions of this Agreement, Jericho hereby grants to Customer a limited, nonexclusive, non-transferable (except as otherwise expressly permitted herein) license to access and use the Service during the Term, solely by the number of authorized users (which may include Customer’s authorized third party agents if and to the extent acting on behalf of Customer) as set forth on the applicable Order Form, for internal and non-commercial purposes, except as otherwise mutually agreed. Customer shall comply with all official documentation, technical manuals, functional manuals, operator and user guides and manuals (collectively, the “Documentation”).
2. 1.2. Consulting Services.   If and as mutually agreed by the parties on any Order Form or in a subsequent written and executed Statement of Work (“SOW”) to be attached hereto and made a part hereof, Jericho may also provide certain consulting services or other similar professional services (“Consulting Services”) in addition to the subscription Service. Consulting Services may include, without limitation, installation services and/or training, ,at mutually agreed rates. Customer shall reimburse Jericho for actual and reasonable travel and travel-related expenses
3. 1.3. Service Levels.   Licensor shall provide the Service Levels set forth on Exhibit A attached hereto and made a part hereof.

2. Proprietary Rights.

1. 2.1. Customer Data.   Customer owns all right, title and interest in and to all Customer Data (defined below), all Customer Confidential Information and all other intellectual property of Customer. As used herein, “Customer Data” shall mean any and all data and information delivered by or on behalf of, or collected from, Customer, its Affiliates, or their respective customers and/or end users, including without limitation any such data or information collected via the Services, which may include, without limitation personal data as defined by law. Customer Data expressly excludes any data to the extent processed by, or resulting as an output of, the Service, which shall be considered Jericho Data (defined below). If and to the extent necessary for operation of the Service by Customer, Customer hereby grants to Jericho a limited, non-exclusive license, during the Term, to use the Customer Data within the Service in order to perform its obligations herein.
2. 2.2. Jericho Technology.   Customer acknowledges and agrees that, subject only to the limited rights expressly granted to Customer under Section 1, Jericho owns and shall at all times retain all rights in and to the Services, including without limitation, all trade secret, copyright, patent, trademark, trade name, and other intellectual and proprietary rights in the Service, software and the Documentation, and all Jericho Data (defined below), and in the technology embodied in or reflected by the foregoing (in each case including any extensions, derivatives, translations, reformulations or developments of the foregoing) (collectively, “Jericho Technology”). Notwithstanding anything to the contrary, Jericho shall own all rights to (i) any content and/or data input into the Services by or on behalf of Jericho, (ii) any aggregated and anonymized data extracted or derived from the Service, including all aggregated and anonymized usage data, statistical data, transactional data, metadata, market data and other aggregated and anonymized data collected from user data and files (“Usage Data”); and (iii) information about actual or potential security threats, threat analysis, or other learnings that could apply to Jericho’s clients generally and/or could or should be added to Jericho’s threat library (collectively, clauses (i) through (iii) “Jericho Data”). Nothing contained in this Agreement or in the parties’ performance or failure to perform hereunder, or in any Services provided by Jericho, shall be construed as granting or conferring to Customer, by implication, estoppel, or otherwise, any such rights in or to any Jericho Technology.

3. Fees; Payment Terms.

Customer shall pay to Jericho in immediately available US dollars, the applicable subscription and other
fees in the amounts and timing as specified in any Order Form (the “Fees”). If no payment schedule is specified in the applicable Order Form, then all amounts are due and payable upon Customer’s execution of this Agreement. The Fees, and any fees for any additional services, equipment or subscription extensions which may be purchased hereunder, are exclusive of all applicable taxes, duties or other governmental assessments, which are the responsibility of Customer. Unless otherwise stated in this Agreement, invoices will be stated in United States dollars and shall be due and payable within 30 days following invoice date unless otherwise specified herein or agreed upon in writing by the parties. Late payments shall be subject to a service charge equal to the lesser of, 1.5% per month or the maximum amount allowed by law, with respect to the overdue amount. Jericho may not raise the Fees during the Initial Term unless otherwise mutually agreed (or if the Customer elects to subscribe to additional Services or purchase additional equipment or consulting), but does reserve the right to increase the Fees at the end of the Initial Term or during any Renewal Term, by delivering written notice to Customer. During any free trial period, if any, Customer will still be responsible for any purchases and surcharges incurred using your account.

4. Term; Termination.

The initial term length shall be as specified the initial Order Form; provided that if no initial term length is specified in any Order Form then the initial term shall be one year (the “Initial Term”). After such initial term, this Agreement shall automatically be renewed for successive one-year renewal terms (each, a “Renewal Term” and together with the Initial Term, the “Term”), unless either party opts out by giving written notice to the other party at least 30 days prior to the end of the then current term. Either party may terminate this Agreement (a) upon 30 days prior written notice if the other party has materially breached this Agreement and has not cured the same within the 30 day notice period, or (b) immediately upon written notice in the event of the filing of a petition for bankruptcy or reorganization by or against the other party or the dissolution or liquidation of the other party. Upon any termination of this Agreement, (a) Customer shall promptly: (i) discontinue all use of the Service and Documentation; (ii) erase or destroy any electronic copies or partial copies of the Documentation, and return to Jericho or destroy any tangible copies or partial copies of the Documentation, in its possession or control; and (iii) certify in writing to Jericho that Customer has complied with these requirements; (c) Jericho shall disengage Customer’s access to the Service, and (d) both parties shall promptly return to the other or destroy the other party’s Confidential Information. Any payment obligations of Customer, provisions providing for limitations on liability, and those terms which by their nature were intended to survive any termination of this Agreement shall so survive including Section 2 and Sections 5 - 10.

5. Warranty.

Jericho warrants to Customer that, during the Term, the Service shall operate in substantial conformity with the Documentation, and that the Consulting Services, if any, will be performed in a professional and workmanlike manner. The foregoing warranty shall not apply if the non-conformance is not replicable or results from third party systems or components used by Customer to access the Service, including any lack of interoperability with such third party systems or components. Jericho does not warrant that operation of or access to the Service will be uninterrupted or error-free, or that all reported defects will be corrected. Jericho’s sole liability and Customer’s sole and exclusive remedy for any breach of the limited warranty set forth above shall be, in Jericho’s sole discretion, to (i) use commercially reasonable efforts to provide an error-correction or work-around for the reported non-conformity, or (ii) terminate this Agreement and refund to Customer the that portion of any prepaid Fee associated with any unused balance of the Term. Jericho shall have no obligation with respect to a warranty claim unless notified of such claim promptly and within the Term. Customer is solely responsible for maintaining its own connectivity and connection to the Service via any necessary hardware, software, telecommunications and internet connections, at its own cost and expense, and Jericho is not responsible for any interruptions thereto, and Customer expressly agrees that Jericho shall not be liable in any manner for any interruption in or failure of access to the Service, nor shall any such interruption or failure of access be deemed a breach of the terms of this Agreement. If and to the extent the Service includes, integrates or links to any third party content, data or software (“Third Party Content”), Customer acknowledges and agrees that (a) Jericho is not responsible for any Third Party Content and it is provided as is; and (b) any Third Party Content may be subject to additional terms and conditions (including applicable terms of use, privacy policies, end user license terms, etc., for which Customer shall be responsible for agreeing to and complying with. Without limiting the generality of the foregoing, Jericho is not responsible for end user error, errors in inputs or for errors in any Customer Data; Jericho does not independently verify the truthfulness or accuracy of any data or content input into the Service and is not responsible for the fraud, misrepresentation, negligence or misconduct of any end user or other third party. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by us or by third-party providers, or because of other causes beyond our reasonable control. We do not warrant that the Services will be uninterrupted or error free; nor do we make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 5, THE SERVICE IS PROVIDED “AS IS”. JERICHO EXPRESSLY DISCLAIMS ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES IMPLIED BY USAGE OF TRADE OR CUSTOM OF DEALING AND DOES NOT REPRESENT OR WARRANT THAT: (A) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED, ERROR-FREE OR VIRUS FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS.

6. Third Party Claim Defense and Indemnification. 

1. 6.1 Intellectual Property Infringement.   Jericho shall defend, indemnify and hold harmless Customer from any costs, expenses, claims, liabilities, judgments, damages or losses, in each case to the extent arising out of any third party claim that the Service infringes a United States patent, copyright, trademark, or other US intellectual property right of such third party. The foregoing obligations are contingent upon Customer providing Jericho with: (i) prompt notice of such claim (and in any event notice in sufficient time for Jericho to respond without prejudice); (ii) the exclusive right to control, direct, and perform the investigation, defense, or settlement of such claim; and (iii) such assistance as may be reasonably requested by Jericho at Jericho’s expense. If Customer’s use of the Service is, or in Jericho’s opinion is likely to be, enjoined, or if required by settlement, or if commercially advisable, Jericho may: (x) substitute for the infringing element of the Service functionally similar software; (y) procure for Customer the right to continue using the Service; or, (z) terminate this Agreement and refund to Customer that portion of any prepaid Service Fee associated with any unused portion of the Term. The foregoing defense and indemnification obligations of Jericho shall not apply to the extent the alleged infringement arises out of the alteration or modification of the Services, use or combination of the Service with other non-Jericho products, services, hardware, software or processes, or any unauthorized use of the Service. In addition, Jericho’s obligations and liabilities under this Section shall be governed by the limitations on liability set forth in Section 8 below and shall be capped at and included within any calculation of direct damages under that Section. THIS SECTION 6 SETS FORTH JERICHO’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT BY THE SERVICE, OR ANY CONSULTING SERVICES.
2. 6.2 Customer Indemnification Obligations.   Customer shall indemnify and hold Jericho harmless from any costs, expenses, claims, liabilities, judgments, damages or losses, in each case arising out of (i) any actual or alleged infringement of any intellectual property rights by the Customer Data (as delivered, without alteration or combination).

7. Limitation of Damages.

EXCEPT FOR THE EXPRESS INDEMNIFICATION OBLIGATIONS HEREIN, AND EXCEPT FOR BREACHES OF SECTIONS 2, 8 OR 9 HEREOF, (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, BASED ON ANY THEORY OF LAW, EQUITY, TORT, CONTRACT OR OTHERWISE, FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE, LOSS OF DATA, OR COSTS OF COVER, IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; AND (B) EACH PARTY’S TOTAL LIABILITY UNDER THIS AGREEMENT OF ANY KIND, WITH ALL CLAIMS, DAMAGES AND LIABILITIES AGGREGATED, AND BASED ON ANY THEORY OF LAW, EQUITY, TORT, CONTRACT OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF THE SERVICE AND LICENSE FEES PAID BY CUSTOMER DURING THE TERM (IN ADDITION TO ANY FEES PAID BY CUSTOMER). ANY CLAIM BY CUSTOMER SHALL BE BROUGHT WITHIN 12 MONTHS FOLLOWING THE EVENT GIVING RISE TO THE SAME. ALTHOUGH INFORMATION THAT USERS SUBMIT MAY BE PASSWORD PROTECTED, JERICHO DOES NOT GUARANTEE THE SECURITY OF ANY INFORMATION TRANSMITTED TO OR FROM THE SERVICE AND CUSTOMER AGREES TO ASSUME THE SECURITY RISK FOR ANY INFORMATION, DATA OR CONTENT IT PROVIDES THROUGH THE SERVICE. CUSTOMER IS RESPONSIBLE FOR ALL USE OF THE SERVICES AND BY ALL END USERS, INCLUDING, WITHOUT LIMITATION, AS APPLICABLE, ANY EMPLOYEES, AGENTS AND CUSTOMERS. CUSTOMER IS RESPONSIBLE FOR COMMUNICATING THE TERMS AND LIMITATIONS IN THIS AGREEMENT TO ANY AND ALL SUCH END USERS, INCLUDING WITHOUT LIMITATION, ANY WARRANTY LIMITATIONS AND ANY LIMITS ON JERICHO’S LIABILITY. ANY USE OF THE SERVICES BY ANY PARTY, INCLUDING CUSTOMER, IN ANY HIGH RISK USE CASE (AS DEFINED BELOW) IS DONE AT THE USER’S OWN RISK, WITHOUT ANY WARRANTY. AS USED HEREIN, A “HIGH RISK USE CASE” IS ANY USE WHERE THE FAILURE OF THE SERVICE COULD CAUSE SERIOUS RISK, INCLUDING RISK OF INJURY TO PERSONS OR PROPERTY, OR A LIFE-THREATENING SITUATION, INCLUDING BUT NOT LIMITED TO, MEDICAL, NUCLEAR, AVIATION, NAVIGATION, EMERGENCY SERVICES, EMERGENCY WEATHER ALERTS, OR MILITARY APPLICATIONS. Jericho is not, directly or indirectly, via the Services, or otherwise, providing any medical, legal, financial, or other advice subject to regulatory oversight, or acting as a doctor, lawyer, broker, insurance agent or broker or other regulated entity. Customer may use the Services for informational purposes only, as an aid, but only as one information source among many, and not as the sole basis for making any decisions; Customer must use proper due diligence and use its own business judgment when making any decisions based on any information, analytics or reports derived from the Services.

8. Confidentiality.

1. 8.1. Confidential Information.   Each party acknowledges that by reason of the relationship created between the parties by this Agreement, it may have access to certain non-public information of substantial value concerning the other party's business, operations, strategic plans, customers, suppliers, technology, competition and employees (“Confidential Information”), which value would be impaired if such Confidential Information were disclosed to third parties or used other than for purposes expressly authorized hereunder. Without limiting the foregoing, but for avoidance of doubt, the terms of this Agreement, and any performance, warranty and like information relating to the Service (by whomsoever generated or communicated) will be considered Confidential Information of Jericho. Accordingly, each party agrees (a) to maintain all Confidential Information received from the other, in whatever form disclosed, in strict confidence, (b) not to disclose or otherwise make available such Confidential Information to any third party without the prior written consent of the disclosing party, and (c) not to use the Confidential Information of the other party except as required in the performance of its obligations or the exercise of its rights hereunder. The foregoing obligations shall not apply to Confidential Information of a disclosing party that, as can be reasonably demonstrated with admissible evidence by the receiving party: (i) is or becomes a matter of public knowledge though no action or omission of the receiving party; (ii) was rightfully in the receiving party’s possession without restrictions on use or disclosure prior to its disclosure by the disclosing party; (iii) is rightfully obtained by the receiving party without an obligation of confidentiality from a third party who has no obligation of confidentiality, direct or indirect, to the disclosing party; (iv) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information; or (v) is required to be disclosed by a court or other authorized tribunal, and then only to the extent of such requirement and only after given prompt notice of the requirement to the disclosing party.
2. 8.2. Data Security.   Jericho will also comply with the data processing addendum (“DPA”) attached hereto as Exhibit B. 
3. 8.3. Return of Confidential Information.   Upon the written request of the disclosing party (subject to each party’s rights, during the Term, to retain the other’s Confidential Information solely for purposes of performing its obligations and exercising its rights hereunder) or upon any termination of this Agreement, the receiving party shall (a) immediately return to the disclosing party or destroy all copies and partial copies of the Confidential Information, whether maintained in tangible, electronic or other form (including permanently erasing any portions thereof from computers and systems) and (b) provide the disclosing party with written certification of its compliance with the terms of this Section.
4. 8.4. Remedies.   Each party acknowledges that any breach of any of its obligations with respect to the other party's Confidential Information may cause or threaten irreparable harm to such party. Accordingly, each party agrees that in such event, the aggrieved party shall be entitled to seek equitable relief in any court of competent jurisdiction without the necessity of posting bond and in addition to such other remedies as may be available to the aggrieved party under law or in equity.

9. License Restrictions. 

1. 9.1 General Restrictions.   Customer shall not, and shall not attempt to (and shall not authorize or allow any third party to or attempt to): (a) download or otherwise obtain a copy of the Service software or any software in any form; (b) reverse engineer or otherwise derive the source code of the Service or software or otherwise modify, reverse compile, disassemble, or translate the Service, or software or create any derivative works thereof; or (c) use the Service on behalf of any third party or for any purpose other than as described in this Agreement; (d) sell, lease, license, sublicense, distribute or otherwise transfer in whole or in part the Service or use it as a service bureau; (e) post, send, process or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material violating of third party rights; (f) knowingly post, send, process or store material containing software viruses, worms, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (g) interfere with or disrupt the integrity or performance of the Service or attempt to gain unauthorized access to the Service or related systems or networks; (h) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of the IP Rights and/or Jericho’s rights and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to the software or on any copies made in accordance with this Agreement; (i) use the Software for purposes of: (1) benchmarking or competitive analysis of the Software; (2) developing, using, or providing a competing software product or service; or (3) any other purpose that is to Jericho's detriment or commercial disadvantage. Customer is solely responsible for the activity that occurs on its account, for keeping its account password secure, and for notifying Jericho immediately of any breach of security or unauthorized use of its account. Customer agrees not to circumvent, disable or otherwise interfere with security-related features of the Service, or features that prevent or restrict use or copying of any content or enforce limitations on use of the Service, or the content therein.
2. 9.2. Evaluation License.   If the Service is licensed or leased on an evaluation trial basis, the term of such license or lease is thirty (30) days from the earlier of installation (if applicable) or first use unless a longer period is specified in writing, after which time the evaluation license ceases. Evaluation use of the Service is intended solely for Customer to determine the compatibility of the Service with Customer’s business needs, and only to be used in a non-production test environment. Jericho has no obligation to provide support, maintenance, upgrades, modifications or new releases during the evaluation period and the service level commitments provided for elsewhere in this Agreement shall not apply, and any Service provided for beta and/or evaluation purposes is provided “as is” and without any warranties, notwithstanding anything to the contrary herein.
3. 9.3 Third Party Services and APIs.   The Services may integrate and/or interact with third party services, such as via APIs or browser extensions. For example, the Services may leverage APIs from third parties, and/or rely on third party browser extensions, and Jericho has no affiliation, association, endorsement, or sponsorship by any other third party services with which it integrates or interacts from time to time (collectively, “Third Party Services”). Jericho makes no claim, representation or warranty of any kind, type or nature concerning any Third Party Services, nor Customer’s or any end user’s use of or compliance with any third party terms of service for any such Third Party Services (collectively, “Third Party Terms”). It shall be Customer’s and end users’ sole responsibility to analyze and interpret any applicable Third Party Terms and comply therewith. Each such user is solely responsible for their interpretation of Third Party Terms and their actions relevant to compliance thereof. By using the Services, Customer hereby releases Jericho and waives any and all claims or claim rights that it may have against Jericho, and releases and indemnifies Jericho against any claims that any third party may have against Customer or end users, including with respect to use of any Third Party Services, including if accessed or used via our Services, and with respect to Third Party Terms, applicable privacy policies or any other rules or regulations of such third parties. Without limiting the generality of the foregoing, Jericho may elect, in our discretion, to utilize social logins, allowing you to login to the Services via other third party authentication services, such as (without limitation) Facebook, Twitter, LinkedIn, Google, or other account credentials. Customer understands that these are Third Party Services, and this in no way creates and endorsement of, by or from Jericho to them or vice versa, that Jericho is not responsible for such third party logins, systems or data, and that by using such third party logins, Customer may be subject to their respective privacy policies and other terms of use. Jericho is not responsible for any failure or inability to integrate with such Third Party Services due to factors outside Jericho’s control, such as, without limitation, if any Third Party Service changes, blocks, or even eliminates their applicable APIs.
4. 9.4 Internet Access and Equipment.   You are responsible for maintaining your own access to the internet, and for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like, and for maintaining the security thereof.

10. General. 

1. 10.1. Notices.   All notices required or permitted under this Agreement shall be in writing and shall be sent by hand, overnight courier or by facsimile (in each case with confirmation of receipt). Notices shall be deemed delivered on the date of delivery, if delivery occurs within normal business hours or on the next business day if delivery occurs outside of normal business hours. All communications will be sent to the respective addresses first set forth above or to such other address as may be designated by a party by giving written notice to the other party pursuant to this Section.
2. 10.2. Assignment.   Neither party may assign this Agreement or any of its licenses, rights or duties under this Agreement, without the prior written consent of the other party, except in connection with a merger, acquisition, change in control, or other similar transaction. Subject to the previous sentence, the rights and liabilities of the parties hereto will bind and inure to the benefit of their respective successors and assignees.
3. 10.3. Publicity.   Customer expressly grants Jericho the right to include Customer in a list of customers on Jericho's website or other promotional material in relation to the Services for marketing purposes. Customer can deny Jericho this right at any time by submitting a written notice, requesting to be excluded from promotional material.
4. 10.4. Waiver.   A waiver shall only be deemed to have been made if expressed in writing by the party granting such waiver and shall not be construed as a waiver of future performance of any such term.
5. 10.5. Force Majeure.   Neither party will be liable for any failure or delay in its performance under this Agreement (or the performance of or access to the Service), other than payment obligations, due to causes that are beyond its reasonable control, including, but not limited to, an act of God, act of civil or military authority, fire, epidemic, flood, earthquake, riot, war, terrorism, sabotage, and governmental action. The delayed party shall: (i) give the other party written notice of such cause promptly; and (ii) use its reasonable efforts to correct such failure or delay.
6. 10.6. Entire Agreement; Construction.   This Agreement and its Exhibits and Schedules, constitute the entire understanding between the parties, and supersede all prior discussions, representations, understandings, or agreements (including any pre-existing nondisclosure agreement, except as to its surviving terms and with respect to information disclosed under that agreement), whether oral or in writing, between the parties with respect to the subject matter of this Agreement. If any provision of this Agreement shall be held by a court of law of competent jurisdiction to be unenforceable, the remaining provisions shall remain in full force and effect and, to the extent allowed and practicable, the unenforceable provision shall be modified so as to be enforceable consistent with its original intent and economic effect. The headings and captions used in this Agreement are for convenience only, and shall not affect the interpretation of the provisions of this Agreement. The word “including” shall be construed non-exclusively, to mean “including but not limited to.” The word “or” shall be construed inclusively, to mean that one or more of the options may occur. This Agreement and any amendment hereto may be executed in counterparts, each of which shall be deemed an original and both of which together shall constitute one instrument.
7. 10.7. Independent Contractors.   The relationship of Jericho and Customer established by this Agreement is that of independent contractors, and nothing contained in the Agreement will be construed to constitute the parties as partners, joint venturers, co-owners, or otherwise as participants in a joint undertaking.
8. 10.8. Non-Solicitation.   During the Term of this Agreement and for a period of one (1) year thereafter, Customer will not, and will ensure that its affiliates will not, directly or indirectly: (i) solicit for employment or for performance of any services any person employed by Jericho or (ii) hire or engage for any services any person employed by Jericho. In the event of a breach of this non-solicitation clause, Customer agrees to pay Jericho compensation equal to Jericho's employee's annual salary as liquidated damages, and not a penalty, which Customer agrees is fair and reasonable compensation for Jericho.
9. 10.9. Governing Law and Jurisdiction; Attorneys’ Fees.   This Agreement shall be governed by and construed under the laws of the State of New York without regard to conflict of laws provisions. The federal and state courts sitting in New York, New York shall have exclusive jurisdiction and venue to adjudicate any dispute arising out of this Agreement, and each party hereto expressly consents to the personal jurisdiction of such courts and waives any objection to venue or forum. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
10. 10.10. Modifications to Terms.   Any modification or amendment to this Agreement must be in writing and signed by each party’s authorized representatives. No terms in any purchase order, clickwrap, shrink-wrap, click to agree, or other document delivered or posted online by either party shall be deemed to amend the terms of this Agreement and any such additional or inconsistent terms shall be deemed unacceptable to and rejected by the parties.

EXHIBIT A
Service Level Agreement (“SLA”)

Subject to the terms of this Agreement, Jericho shall use commercially reasonable efforts to: (a) maintain the security of the Service; (b) make the Service generally available 24 hours a day, 7 days a week; in each case, except for: (i) planned downtime, outside of normal business hours; and (ii) downtime caused by circumstances beyond Jericho's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, telecommunications or network failures or delays, computer failures involving hardware or software not within Jericho possession or reasonable control and acts of vandalism (including network intrusions and denial of service attacks); (iii) any defect, error or problem caused by operator error; (iv) any third party product or service outside of Company’s firewalls, including without limitation, network or telecommunications services, client connectivity provider services, mobile carrier services, and/or internet latency; (v) any unauthorized or improper use of the Services contrary to this Agreement or the documentation; (vi) any unauthorized combination of the Services with any third party products other than as expressly specified in the documentation; or (vii) problems with any authorized user’s, government agencies’ or other third party’s hardware, software, systems or networks, including LANS, WANS, VPNs, etc. or any failure of such items to conform to any capacity requirements Customer is solely responsible for providing, at its own expense, all network access to the Service, including, without limitation, acquiring, installing and maintaining all telecommunications equipment, hardware, software and other equipment as may be necessary to connect to, access and use the Service. Jericho has implemented reasonable security measures and maintains the Service at reputable third party Internet service providers and hosting facilities. However, Customer acknowledges and agrees that, notwithstanding such security measures, use of or connection to the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Services and Customer Data. Accordingly, Jericho cannot and does not guarantee the privacy, security or authenticity of any information so transmitted over or stored in any system connected to the Internet.

EXHIBIT B
DATA PROCESSING ADDENDUM (this “Addendum” or the “DPA”)

This Exhibit is part of, and subject to, the applicable agreement(s) between the parties. This exhibit shall apply only to the extent of processing of Personal Data (as defined below) under Applicable Data Protection & Privacy Laws (as defined below). As used herein, “Applicable Data Protection & Privacy Laws” shall mean, if and as applicable, the California Consumer Privacy Act (CCPA)) and/or the EU General Data Protection Regulation (GDPR), or other applicable privacy laws. Other defined terms used herein, such as “Personal Data”, shall have the meanings as defined by Applicable Data Protection & Privacy Laws.

1. Appointment. Customer shall be deemed the “controller” and appoints Jericho as a “processor” to process (as defined by applicable law(s)) the Customer Personal Data as necessary to perform its obligations under the Agreement.
2. Purpose & Scope Limitation. Jericho shall Process Personal Data on behalf of and subject to the instructions of Customer and as permitted by this Agreement. Customer is responsible for its instructions. In the event Jericho is unable to comply with such reasonable instructions, it will inform Customer thereof as soon as possible. The Personal Data transferred by Customer to Jericho in connection with this Agreement shall be used by Jericho for the performance of the Agreement and in accordance with the instructions of the Customer and as otherwise expressly permitted by the Agreement. Customer shall at all times be the data controller and as such shall be responsible at all times for obtaining and maintaining all consents and approvals for Processing of all Personal Data Processed under this Agreement.
3. Protection. Jericho shall treat all Personal Data that it receives from Customer that it Processes in connection with this Agreement as confidential and shall use reasonable efforts to not disclose any such Personal Data to unauthorized third parties, in accordance with the confidentiality provisions in the Agreement including this DPA (the “Security & Confidentiality Obligations”). Jericho will implement technical and organizational Security measures in accordance with the Security & Confidentiality Obligations designed to protect Customer’s Personal Data against accidental or unlawful destruction or loss, alteration, unauthorized disclosure or access, in particular where the Processing involves the transmission of Data via a network, and against all other unlawful forms of Processing.
4. Compliance with Laws and Security Safeguards. Jericho will comply with the Applicable Data Protection & Privacy Laws with respect to Processing of the Personal Data. Jericho will design physical and logical security procedures with respect to its access and maintenance of the Subscription Services, and provide technical and organizational safeguards designed to protect against accidental, unlawful or unauthorized access or disclosure thereof. Jericho will take reasonable security measures in accordance with the Security & Confidentiality Obligations designed to secure and defend its location and equipment against “hackers” and others who may seek to modify or access Customer Personal Data and associated network or systems, or the information found therein without authorization, and to secure and defend Personal Data from Customer.
5. Confidentiality Requirements for Employees & Agents. Jericho shall inform its applicable employees, agents and/or sub-processors engaged in processing the Personal Data of the confidential nature of the Personal Data, and shall ensure that all such persons or parties have signed an appropriate confidentiality agreement, or are otherwise bound to a duty of confidentiality, or are under an appropriate statutory obligation of confidentiality.
6. International Transfers. Jericho shall not transfer any Personal Data outside of the European Economic Area ("EEA"), the US, or other country of origin, as the case may be, unless it takes such measures as are necessary to ensure the transfer is in compliance with Applicable Data Protection & Privacy Laws. Such measures may include (without limitation) transferring the Personal Data to a recipient in a country that the European Commission has decided provides adequate protection for personal data, to a recipient that has achieved binding corporate rules authorization in accordance with Applicable Data Protection & Privacy Laws, or to a recipient that has executed standard contractual clauses adopted or approved by the European Commission.
7. Appointment of Sub-Processors. Jericho shall not subcontract processing of Personal Data hereunder to any Sub-Processor(s), unless it takes such measures as are necessary to ensure it is done in compliance with Applicable Data Protection & Privacy Laws.
8. Data Breach Notification and Remedial Measures. If a person concerned asserts his/her rights against Jericho under Applicable Data Protection & Privacy Laws, Jericho shall promptly notify Customer in writing; Customer shall then be exclusively responsible for safeguarding the rights of the person(s) making such assertion(s). Jericho shall inform Customer promptly (without undue delay) upon becoming aware of any material, confirmed breach of Personal Data protection in processing of Personal Data under this Agreement (“Privacy Incident”). Jericho shall promptly investigate any such Privacy Incident and attempt to determine the cause and mitigate against future occurrences. Subject to the Agreement (including without limitation any force majeure provisions therein), Jericho shall not be liable nor responsible for any Privacy Incident to the extent caused by or arising out of anything out of the reasonable control of Jericho, such as, without limitation, to the extent caused by Customer.