BY USING THE SOFTWARE OR HARDWARE, YOU (THE "USER"), WHO REPRESENTS AN ENTITY OR COMPANY ("CUSTOMER"), ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS END USER LICENSE AGREEMENT ("AGREEMENT") WITH DEEPSURFACE SECURITY, INC. (THE "VENDOR").  USER'S USE OF THE SOFTWARE SHALL ALSO CONSTITUTE ASSENT TO THE TERMS OF THIS AGREEMENT.  IF USER DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CANCEL THE LOGIN PROCESS AND RETURN ALL SOFTWARE AND HARDWARE (IF PROVIDED).  IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.


1.	LICENSE.

1.1 	Subject to the terms and conditions of this Agreement, including without limitation payment of the License Fees, Vendor grants to Customer as of the effective date specified on the applicable Schedule, a perpetual, a non-exclusive, royalty-free, revocable, non-transferable, non-sublicensable limited license ("License") for Customer's internal use as defined in any applicable sales order or statement of work (collectively, "Sales Order"), to install and operate the Software and all Customer's employees and authorized contractors to use the Software for the sole benefit of Customer and solely at the Customer's site or Customer's cloud instances.  In the event Customer desires to license additional Software from Vendor, the parties shall execute one or more additional Sales Orders for the applicable Software.  By extension, the User is granted the same License to Software only while User is an authorized representative of Customer. Vendor has the actual authority to grant the license detailed in this Section 1.1.

1.2	"Software" means Vendor's proprietary software and documentation specifically identified in one or more separately executed Schedules hereto, including the following: (i) Vendor proprietary computer information and software included in the Software; (ii) third party proprietary computer information or software that Vendor has licensed for inclusion in the Software; (iii) written materials or files relating to the Software ("Documentation"); and (iv) modified versions, updates, proprietary data, and additions to the Software, if any (collectively, "Updates").  Any third-party and open-source licenses are available for review in the Software and can be provided upon request. Third-party and open-source licenses may change from time to time.

1.3	"Feedback" means information provided by the User or Customer to Vendor concerning the functionality, usage patterns, and/or performance of the Software (including identifying potential errors and improvements).  User and Customer hereby assign to Vendor all right, title, and interest in and to the Feedback and Vendor is free to use the Feedback without payment or restriction.  	

1.4 	If terms of this Agreement conflict with those in any separately agreed to Sales Order, the terms of the Sales Order shall govern.

1.5	If Customer is using the Software in Vendor's demo environment, Customer agrees not to share any results, data, or information related to the Software of the demo environment with any party not specifically named in the application Sales Order, evaluation license, or demo agreement.


2.	PROHIBITED USES.  User and Customer may use the Software only for Customer's own internal business purposes.  Unless otherwise expressly permitted in this Agreement, User and Customer shall not, and shall not permit any third party to: (i) use the Software to process, or permit the Software to process, data for any third party; (ii) use the Software in operation of a service bureau; (iii) permit any third parties to use the Software.  Customer shall not, and shall not allow any third party to, modify, adapt, translate, create derivative works of, sublicense, rent, lease all or any portion of, or reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of, the Software or Documentation; (iv) use the Software or Documentation for the purpose of developing or distributing any technology or service which could reasonably be construed to be competitive with the Software or the Vendor in any way; or (v) disclose or permit any party to disclose the results of any performance or competitive test with any other product or service, except that the result any performance or competitive test may be disclosed to the User's and Customer's organization for their own internal purposes.  All use of third-party open-source software shall be in accordance with applicable open-source third-party licenses.  Current open-source licenses can be found at [https://docs.deepsurface.com/public/OpenSourceLicenses.html].  Vendor disclaims all liability for Customer's use of any third-party software.

In the event of a failure of the Software to perform as specified in the Documentation, Vendor shall diligently endeavor to remedy any material failures to conform to its functional specifications, as described in the Documentation, that Customer reports to Vendor and that Vendor is able to replicate during the applicable Software Term ("Errors").  The foregoing shall be Customer's sole remedy, and shall be Vendor's sole liability, for any such material failure.  Vendor shall not be obligated to correct Errors resulting from any (i) components or content that Vendor does not provide; (ii) unauthorized use or use of the Software other than in accordance with the Documentation and this Agreement; or (iii) viruses, malicious software, or other disruptive programs or applications that Customer, its agents, or any Users introduce into the Software or which are introduced into the Software as a result of Customer's use of the Software.


3.	EXPORT RULES.  Customer shall not ship, transfer, or export the Software into any country or use the Software in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions, or regulations (collectively the "Export Laws").  If any portion of the Software is identified as an export-controlled item under the Export Laws, Customer represents and warrants that Customer is not a citizen of, or otherwise located within, or an entity organized under the laws of, or otherwise located within, any nation embargoed by the United States and that Customer is not otherwise prohibited under the Export Laws from receiving the Software.  All rights to use the Software are granted on condition that Customer complies with the Export Laws, and all such rights are and will be deemed forfeited if Customer fails to comply with the Export Laws.


4. 	U.S. GOVERNMENT RESTRICTED RIGHTS.  Where applicable, the Software is provided with "RESTRICTED RIGHTS".  Use, duplication or disclosure by the U.S. Government is subject to restrictions as set forth in FAR52.227-14 and DFAR252.227-7013, et. seq., or its successor.  Use of the Software by the U.S. Government constitutes acknowledgment of Vendor's rights in the Software.


5.	INTELLECTUAL PROPERTY OWNERSHIP.  The Software, including any and all Updates, any modifications made by Vendor's employees and any authorized copies thereof that Customer makes are the intellectual property of, and are owned by, Vendor and by third parties whose intellectual property has been licensed by Vendor.  The structure, organization, and code of the Software are the valuable Confidential Information of Vendor and such third parties.  The Software is protected by law, including without limitation, the copyright laws of the United States and other countries, and by international treaty provisions.  Except as expressly provided in this Agreement, Customer is not granted any rights under Vendor's or its licensors' intellectual property rights in the Software, and Vendor and such licensors reserve all rights not expressly granted to Customer under this Agreement.  Unless otherwise specifically agreed in an applicable Sales Order, Vendor shall own all right, title, and interest (including all intellectual property rights) in and to all inventions (whether or not patentable), works of authorship, designs, know-how, ideas and information made or conceived or reduced to practice, in whole or in part, by Vendor in connection with the Services ("Work Product").


6.	SAFE OPERATION.  CUSTOMER ASSUMES RESPONSIBILITY FOR, AND SHALL UNDERTAKE BEST EFFORTS IN USING THE SOFTWARE TO PROVIDE FOR SAFE OPERATION THEREOF, INCLUDING BUT NOT LIMITED TO, COMPLIANCE OR QUALIFICATION WITH RESPECT TO ALL SAFETY LAWS, REGULATIONS AND AGENCY APPROVALS, AS APPLICABLE.  THE SOFTWARE IS NOT DESIGNED OR INTENDED FOR USE AS COMPONENTS IN EQUIPMENT INTENDED TO SUPPORT OR SUSTAIN LIFE, OR FOR ANY OTHER APPLICATION IN WHICH THE FAILURE OF THE SOFTWARE MAY CREATE A SITUATION IN WHICH PERSONAL INJURY OR DEATH MAY OCCUR AND CUSTOMER SHALL HAVE NO RIGHTS HEREUNDER FOR ANY SUCH APPLICATIONS.  


7.	CONFIDENTIALITY.

7.1	Definition.  "Confidential Information" means (a) the Software; and (b) any business or technical information of Vendor or Customer including, but not limited to, any information relating to Vendor's or Customer's product plans, designs, costs, product prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how that is designated by the disclosing party as "confidential" or "proprietary" and, if orally disclosed, reduced to writing by the disclosing party within thirty (30) days of such disclosure.

7.2	Exclusions.  Confidential Information does not include information that: (a) is or becomes generally known to the public through no fault or breach of this Agreement by the receiving party; (b) is known to the receiving party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving party without use of the disclosing party's Confidential Information; (d) the receiving party rightfully obtains from a third party without restriction on use or disclosure; or (e) is disclosed with the prior written approval of the disclosing party.

7.3	Definition.  "Nondisclosure Term" means the date of first disclosure of Confidential Information and continues for a period of five (5) years after any termination of this Agreement.  Notwithstanding the foregoing, the Nondisclosure Term on any Confidential Information that constitutes a trade secret or shall continue in effect for so long as the Confidential Information remains a trade secret under applicable law. Notwithstanding the foregoing, the Nondisclosure Term on any Confidential Information that constitutes personally identifiable information or other regulated information shall continue in effect while the distribution of that information remains under regulatory restrictions.

7.4	Use and Disclosure Restrictions.  During the Nondisclosure Term neither party will use the other party's Confidential Information except as permitted herein, and will not disclose such Confidential Information to any third party except to employees and consultants as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein executed in writing by such employees and consultants).  However, each party may disclose Confidential Information of the other party: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the disclosing party gives reasonable notice to the other party to contest such order or requirement; and (b) on a confidential basis to legal or financial advisors.


8.	Infringement Remedies.    If the Software infringes, or if Vendor believes that the Software infringes, on the intellectual property or other proprietary rights of any third party, Vendor may, in its sole discretion, (i) modify the Software to be non-infringing, (ii) obtain for Customer a license to continue using the affected Software, or (iii) if neither (i) nor (ii) are practical in Vendor's sole judgment, terminate the affected Software and return to Customer the unused portion of any fees paid for the affected Software.  Subject to the parties also meeting their express indemnification obligations under this Agreement, Vendor's satisfactory performance of any one or all of the remedies set forth in the preceding sentence shall be Customer's sole and exclusive remedy for infringement or for any damages incurred from early termination of the applicable Order Form due to a third-party infringement claim. 


9.	DISCLAIMER OF WARRANTIES.  THE SOFTWARE IS BEING DELIVERED TO CUSTOMER "AS IS".  VENDOR AND ITS SUPPLIERS MAKE NO WARRANTY AS TO ITS USE, RELIABILITY OR PERFORMANCE.  VENDOR AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE.  VENDOR AND ITS SUPPLIERS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AS TO NON-INFRINGEMENT OF ANY THIRD PARTY RIGHTS, TITLE, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE, OR THAT THE SOFTWARE DOES NOT CONTAIN MALWARE OR MALICIOUS CODE; VENDOR DOES NOT WARRANT THAT THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR WILL DETECT ANY SECURITY THREATS OR MALICIOUS CODE, OR THAT ANY INFORMATION OR OTHER MATERIAL ACCESSIBLE OR PROVIDED THROUGH ANY SOFTWARE OR SERVICE IS ACCURATE, COMPLETE OR FREE OF VIRUSES, MALICIOUS CODES, OR WILL DETECT INTRUSIONS, SECURITY BREACHES OR OTHER HARMFUL CONTENTS OR COMPONENTS.  CUSTOMER ASSUMES ALL RISK ASSOCIATED WITH THE QUALITY, PERFORMANCE, INSTALLATION AND USE OF SOFTWARE INCLUDING, BUT NOT LIMITED TO, THE RISKS OF PROGRAM ERRORS, DAMAGE TO EQUIPMENT, LOSS OF DATA OR SOFTWARE PROGRAMS, OR UNAVAILABILITY OR INTERRUPTION OF OPERATIONS.  SUBJECT TO THE SAFE OPERATION RESTRICTIONS IN SECTION 6 ABOVE, CUSTOMER IS SOLELY RESPONSIBLE FOR DETERMINING THE APPROPRIATE USE OF THE SOFTWARE AND ASSUMES ALL RISKS ASSOCIATED WITH ITS USE. 


10.	LIMITATION OF LIABILITY; CAP ON DAMAGES.  EXCEPT FOR LIABILITY OF CUSTOMER ARISING UNDER SECTIONS 2 (PROHIBITED USES), 6 (SAFE OPERATION), 7 (CONFIDENTIALITY), AND SECTION 12 (GENERAL; ASSIGNMENT), IN NO EVENT SHALL EITHER PARTY (OR IN THE CASE OF VENDOR, VENDOR'S LICENSORS OR SUPPLIERS), BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES, OR ANY LOST REVENUE, LOST PROFITS, LOST SAVINGS, LOST BUSINESS OR LOSS OF GOODWILL, EVEN IF A PARTY OR ITS REPRESENTATIVE (OR IN THE CASE OF VENDOR, A REPRESENTATIVE OF ONE OR MORE OF VENDOR'S LICENSORS OR SUPPLIERS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.  THESE LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN CUSTOMER'S JURISDICTION.  EXCEPT FOR LIABILITY ARISING UNDER SECTION 7 (CONFIDENTIALITY), THE AGGREGATE LIABILITY OF VENDOR, AND VENDOR'S LICENSORS AND SUPPLIERS, RESPECTIVELY, UNDER OR IN CONNECTION WITH THIS AGREEMENT, SHALL BE LIMITED TO AMOUNTS RECEIVED BY VENDOR, FROM CUSTOMER, UNDER THIS AGREEMENT.


11.	TERMINATION.

11.1	Termination for Cause.  Either party may terminate this Agreement or, a Sales Order executed hereunder, upon thirty (30) days prior written notice to the other party, if the other party is in material breach of this Agreement or the applicable Sales Order and fails to cure such material breach within thirty (30) days after delivery of such written notice. 

11.2	Immediate Termination.  Vendor or Customer may immediately terminate this Agreement, and all Sales Orders executed hereunder, upon notice if the other party: (i) ceases to carry on business as a going concern; (ii) becomes the object of the institution of voluntary proceedings in bankruptcy or liquidation; (iii) becomes the object of the institution of involuntary proceedings in bankruptcy or liquidation, or a receiver is appointed with respect to a substantial part of its assets, if such petition or proceeding is not dismissed or receiver discharged within thirty (30) days of filing or appointment; or (iv) breaches (only with respect to Customer) the License defined in Section 1.1.

11.3	Effect of Termination.  Upon termination of this Agreement or a Sales Order for any reason, Customer shall: (i) immediately stop using the applicable Software; (ii) ensure that all of Customer's users immediately stop using the applicable Software; and (iii) return to Vendor the original and all permitted copies of the applicable Software and Proprietary Information in Customer's possession, custody, or control; or (iv) in lieu of returning such Software and Proprietary Information as specified in the immediately preceding item (iii), destroy all such copies and certify in writing, such destruction, signed by an officer of Customer.

11.4	Nonexclusive Remedy.  Termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party.

11.5	Survival.  Termination of this Agreement will not: (i) release either party from any claim, including but not limited to any claim for payment, of the other party accrued hereunder prior to the effective date of such termination; or (ii) affect the rights and obligations set forth in Sections 2, 3, 4, 5, 6, 7, 8, 9, 10, 11.3, 11.4, 11.5 and 12 which will survive termination.


12.	GENERAL.

12.1	Assignment.  Customer will have no right to assign this Agreement, in whole or in part, without Vendor's prior written consent.  Any attempt to assign this Agreement, without such consent, will be null and void.  Notwithstanding the foregoing, Customer may assign this Agreement, without Vendor's consent, to any entity that controls, is controlled by, or is under common control with, Customer; provided that the assignee agrees in writing to be bound by the terms and conditions of this Agreement and the assignee is not a competitor of Vendor.  For purposes of the preceding sentence, "control" means having the ability to elect a majority of the board of directors or a similar governing body.

12.2	Governing Law and Jurisdiction.  This Agreement will be governed by and construed in accordance with the laws of the State of Oregon.  Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Portland, Oregon, and the parties hereby consent to the personal jurisdiction and venue therein.

12.3	Severability.  If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.

12.4	Waiver.  The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.

12.5	Notices.  All notices required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by courier or overnight delivery service, by certified mail, or by e-mail and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth in any sales order or to such other address as may be specified by either party to the other in accordance with this Section.  Either party may change its address for notices under this Agreement by giving written notice to the other party by the means specified in this Section.

12.6	Force Majeure.  Neither party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including but not limited to, labor disputes, strikes, lockouts, pandemic, shortages of or inability to obtain labor, energy, raw materials or supplies, war, riot, act of God or governmental action.

12.7	Relationship of the Parties.  The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties.  Neither party will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent.

12.8	Entire Agreement.  With exception to any previously agreed-to Sales Orders, this Agreement, including all schedules, exhibits and attachments attached hereto, contains the complete understanding and agreement of the parties and supersedes all prior or contemporaneous agreements or understandings, oral or written, relating to the subject matter herein.  Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of the parties.