IO.CLOUD CUSTOMER AGREEMENT

TERMS AND CONDITIONS

  1. General. This Agreement governs Customer’s access to and use of the IO.Cloud services (the “Services”) that Exacent, LLC (“IO”) makes available to Customer or that Customer orders via IO’s Cloud interface located at https://dash.cloud.io.com (“IO.Cloud Dashboard”). IO accepts Customer’s order for services either by (a) signing this Agreement or (b) provisioning the Services for use by Customer.

  2. Services.

    1. Order: IO will provide the Services that are set forth on an IO.Cloud order form or are ordered and provided for via IO.Cloud Dashboard (each, an “Order”) in accordance with this Agreement. This “Agreement” includes and incorporates this IO.Cloud Agreement plus all Orders, Exhibits and Attachments thereto, including, without limitation the Acceptable Use Policy (“AUP”) which can be found at www.io.com/Legal and any Services Description or Service Level Agreement as set forth on the IO.Cloud Dashboard. If there is any conflict between the IO.Cloud Customer Agreement and the Attachments, the applicable Order shall govern. IO shall provide the Services for Customer at IO’s then published rates (the “Rate Card”) or at rates mutually agreed upon in writing between Customer and IO. In the event Customer fails to timely perform or provide any services or information required by IO to provide the Services or if IO determines in its sole discretion that remedial action needs to be taken, IO shall be excused from providing the Services until such time that Customer performs or provides such services or information required or performs such remedial action.

    2. Subject to the terms of this Agreement, IO will provide access to and use of the Services. IO retains all applicable right, title and interest in the hardware, software, APIs, tools and documentation IO uses to provide the infrastructure, functionality or otherwise made available as part of the Services (the “Service Elements”). Customer agrees not to reverse engineer, decompile, disassemble or otherwise copy the Services or Service Elements.

    3. The Services may contain third party software, including open source software. Customer shall comply with such software’s terms and conditions governing its use. IO makes no representations or warranties of any kind, either express or implied, of such software. If Customer users Microsoft software in conjection with the Services, Microsoft Corporation requires that Customer agree to these additional terms and conditions: Microsoft Terms.

    4. IO shall have the right to modify or delete an API at any time upon no less than five (5) calendar days’ prior notice to Customers, which notice may be via electronic mail or by posting on the IO.Cloud Dashboard. Customer acknowledges and agrees that once an API is modified or deleted it may no longer work and Customer is responsible to update their use of any such API.

    5. Should any condition exist that may impair the integrity of the Services, IO will initiate and coordinate planned maintenance, which may include disconnection of all or any part of the Services. IO will, to the extent reasonably practicable, give Customer seven (7) business days’ notice in writing (or such shorter period as may be reasonably necessary), which notice may be via electronic mail, prior to initiating a planned maintenance operation, of the timing and scope of such planned maintenance operation.

  3. Fees/Payment. Unless otherwise set forth on an Order, (a) monthly recurring or rate charges (“MRC”) set forth on an Order or as set forth in the Rate Card based on Customer’s use of the Services are due and payable in advance on the first day of each month, (b) varying or usage-based charges (if applicable) as set forth in the Rate Card will be billed monthly in arrears and (c) set up fees and/or other nonrecurring charges (“NRC”) as set forth on the Rate Card will be billed upon the date the Services are ordered and are non-refundable and not subject to pro-ration (collectively, the “Fees”). In addition to the Fees, Customer shall be responsible for all applicable taxes. All amounts due hereunder shall be paid in United States Dollars unless otherwise set forth in the applicable Order and shall be by check delivered to IO’s designated address for payment or via automated clearinghouse (ACH) (or other funds transfer method designated by IO) pursuant to instructions provided by IO from time to time. Any amount not received by IO by the applicable due date shall be subject to interest measured from the original due date at the lesser of eighteen percent (18%) per annum or the highest rate allowed by law. Customer shall be deemed to have accepted as conclusively accurate any invoice that it has not disputed, in writing and delivered to IO within sixty (60) days of the invoice date. If IO is not able to deliver the Services on time due to a delay of Customer or its end users or agents, IO may commence billing as of the date the Services would have been ready for delivery but for such delay. IO does not give refunds for any charges already due, incurred or paid.

  4. Term. The term of the Agreement will commence on the Effective Date and will continue until terminated set forth in Section 5 below (the “Term”).

  5. Termination.

    1. By Customer. Unless otherwise stated in an Order, Customer shall have the right to terminate this Agreement upon written notice to IO. Customer acknowledges and agrees that any set up fees, reservation fees, non-recurring charges or any other NRCs for Services provisioned by or provided to Customer up to and through the date of termination shall be due and are not refundable or subject to pro-ration. Subject to Section 5(c)(ii), Customer acknowledges and agrees that upon any such termination, IO shall have no obligation to store Customer Data (as defined below) or to permit Customer’s retrieval of such Customer Data and that IO shall have the right to delete all Customer Data without any liability.

    2. By IO. IO may suspend the Services and/or terminate this Agreement or any applicable Order or Services at any time, without further notice or liability, for cause upon the occurrence of any of the following:

      1. Customer’s failure to pay any overdue undisputed amount;

      2. Customer’s violation of the AUP;

      3. Customer’s attempt at a denial of service attack on any of the Services;

      4. Customer’s attempt to hack or break any security mechanism on any of the Services or IO otherwise determines in its sole discretion that Customer’s use of the Services poses a security or service risk to IO, to any user of IO services or may subject IO or any third party to liability, damages or danger;

      5. Customer uses the Services in any way that threatens or disrupts the Services;

      6. IO receives notice of or IO otherwise determines in its sole discretion, that Customer may be using Services for any illegal purpose; in a way that violates any laws; or violates, infringes or misappropriates the rights of any third party;

      7. IO determines in its sole discretion that Customer hosts content that may subject IO to legal liability; or

      8. Upon ten (10) calendar days’ notice in the event of any other material breach of the Agreement, if such breach is not cured within that period.

    3. If the Agreement, Services or an Order is terminated by IO for cause pursuant to Section 5(b) or by Customer for any reason other than cause as set forth in Section 5(a), then Customer may be liable for: (a) an early termination charge equal to 100% of the Fees for the remainder of committed Term, as applicable, of all terminated Orders; and (b) all charges, including all Fees, accrued but unpaid as of the termination date plus interest as set forth in Section 3. In addition, IO shall be entitled to recover all reasonable attorneys’ fees and other expenses incurred by IO in connection with enforcing this Agreement and collecting any amounts owed. The parties agree that the pricing of certain Services provided hereunder is based on a minimum term and any cancellation fees and early termination charges set forth in this Agreement are a material element to such pricing provided hereunder.

    4. Effect of Termination.

      1. In the event IO suspends Customer’s access to any Service for any reason other than for cause under Section 5(b), during the period of suspension IO will not take any action to intentionally erase any Customer Data (as hereinafter defined) stored or located on the Services and applicable Fees will continue to accrue. “Customer Data” shall mean all data, information and software that is created, installed, uploaded or transferred in connection with the Services by Customer or its end-users.

      2. In the event of termination by IO for any reason other than pursuant to Section 5(b), IO will not take any action to erase any of Customer Data stored on the Services for a period of thirty (30) days after the effective date of termination provided that Customer’s retrieval of Customer Data stored on the Services will be conditioned on Customer’s payment of Service Fees up through the date of retrieval, payment in full of all other amounts owing to IO and Customer’s compliance with any terms and conditions that IO may provide to Customer with respect to such Customer Data retrieval.

      3. Other than as set forth in Section 5(c) (i) and (ii) above, IO shall have no obligation to continue to store Customer Data during any period of suspension or termination or to permit retrieval of such Customer Data and that immediately upon termination and following the time period in 5(c)(ii), IO shall have the right to delete all Customer Data.

  6. Acceptable Use Policy. Customer shall comply with the AUP, which can be found at http://www.io.com/legal, which is incorporated herein by reference. IO may modify or amend the AUP and any changes will be posted to the IO website. IO may suspend the Services without notice if IO becomes aware of any AUP violation by Customer or its end users.

  7. Representations and Warranties. Customer represents and warrants the following:

    1. Customer will not use the Services or its content:

      1. in a manner that infringes, violates or misappropriates any rights of IO or any third party;

      2. in any manner that constitutes or facilitates the illegal export of any controlled or otherwise restricted items, including, without limitation, software, algorithms or other data that is subject to export laws;

      3. in a way that is otherwise illegal or promotes illegal activities or violates any applicable law, rule or regulation; or

      4. so as to place or allow any content within the Service that requires or imposes any legal or regulatory compliance by IO.

    2. Customer is solely responsible for the development, operation and maintenance of its use of the Services by Customer or any third party, including, without limitation, the accuracy, appropriateness and completeness of Customer Data and Customer has the necessary rights, licenses and consents to use and display the Customer Data.

    3. Customer acknowledges that Customer is responsible for understanding the regulatory requirements applicable to Customer’s business and for selecting and using the Services in a manner that satisfies the requirements.

    4. Customer represents and warrants that it currently complies with all applicable domestic and foreign anti-bribery or anticorruption laws.

  8. Customer Data.

    1. Except as required to perform the Services under this Agreement, specifically requested by Customer or to the extent required by law or as necessary to comply with a governmental or regulatory body or order from a court of competent jurisdiction (in which case IO shall use commercially reasonable efforts to notify Customer, to the extent allowed by law, so that Customer may seek, if it so chooses, a protective or similar order), IO shall not access Customer Data that is transmitted or stored using the Services.

    2. Customer is solely responsible for the Customer Data, including without limitation, use, display, creation, deployment, licensing and backup of such Customer Data. Customer shall comply with all applicable laws related to Customer Data and IO shall have no liability related thereto. Customer is solely responsible for determining and implementing the necessary controls regarding security of Customer Data and shall be solely responsible for managing Customer Data and access thereto.

  9. Indemnification. Customer will indemnify, defend and hold IO, its affiliates, members, managers, shareholders, officers, directors, employees, agents, representatives and licensees, harmless from and against any and all costs, liabilities, judgments, actions, losses and expenses (including, but not limited to, reasonable attorneys’ fees and costs) arising from or related to the breach of this Agreement or Customer’s use of the Services, including, without limitation, any violation of the AUP, breach of any confidentiality obligation or any alleged infringement of any trademark, copyright, patent or other intellectual property right by Customer or any person or entity using Customer’s account.

  10. Service Level Agreement. IO will provide the Services in accordance with the applicable service levels set forth in the Services Description and Service Level Agreement attached hereto (the “SLA”). IN THE EVENT OF A BREACH OF THE SLA, CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND IO’S SOLE AND EXCLUSIVE LIABILITY, SHALL BE FOR IO TO PROVIDE CUSTOMER THE APPLICABLE SERVICE LEVEL CREDIT(S) SET FORTH IN THE SLA.

  11. Disclaimer of Warranties. EXCEPT FOR ANY WARRANTIES THAT CANNOT BE EXCLUDED, ALL SERVICES MADE AVAILABLE BY IO TO CUSTOMER HEREUNDER ARE PERFORMED, PROVIDED AND MADE AVAILABLE WITH NO WARRANTIES OF ANY KIND, AND CUSTOMER’S USE THEREOF IS AT CUSTOMER’S SOLE AND EXCLUSIVE RISK AND IO DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.

  12. Limitations of Liability. IN NO EVENT SHALL IO BE LIABLE FOR ANY INCIDENTAL, PUNITIVE, INDIRECT, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING WITHOUT LIMITATION, LOST CUSTOMER MATERIALS, LOST PROFITS, LOSS OF BUSINESS, LOSS OF REVENUES, LOSS OF DATA OR INTERRUPTION OR CORRUPTION OF DATA OR DAMAGES TO SOFTWARE, EVEN IF IO WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

  13. IN NO EVENT WILL IO’S AGGREGATE LIABILITY TO CUSTOMER ARISING FROM OR RELATED TO THIS AGREEMENT WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, EXCEED THE AMOUNT OF ACTUAL DAMAGES UP TO THE GREATER OF USD$25,000 (OR EQUIVALENT IN LOCAL CURRENCY) OR THE AMOUNT PAID BY CUSTOMER TO IO UNDER THE ORDER FOR WHICH THE CLAIM AROSE FOR THE SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE.

    NO CLAIM MAY BE ASSERTED BY CUSTOMER AGAINST IO MORE THAN ONE (1) YEAR FOLLOWING THE DATE OF THE EVENT THAT UNDERLIES ANY SUCH CLAIM.

    THE LIMITATIONS SET FORTH IN THIS AGREEMENT SHALL APPLY NOTWITHSTANDING THE FAILURE OF THEIR ESSENTIAL PURPOSE.

  14. Confidentiality. Each party acknowledges that it will have access to certain confidential information and materials of the other party (“Confidential Information”). Confidential Information will include, but not be limited to, information regarding each party’s business, plans, customers, technology, products, proprietary software, and customer information. IO specifically designates as Confidential Information its prices, rates, quotations and other financial information relating to this Agreement; and its written security procedures, manuals and other operational documents and procedures. Customer also specifically designates its Customer Data as Confidential Information. Each party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by this Agreement, nor disclose to any third party (except as required by law or to that party’s attorneys, accountants and other advisors as reasonably necessary), any of the other party’s Confidential Information and will take reasonable precautions to protect the confidentiality of such information. Subject to Section 5(c)(ii) above, within thirty (30) days after expiration or termination of this Agreement for any reason, upon request by the disclosing party, the receiving party will return all Confidential Information of the disclosing party in its possession, custody or control at the time of expiration or termination and will not make or retain any copies of such Confidential Information except as required to comply with any applicable legal, accounting, or administrative record keeping requirement. Information will not be deemed Confidential Information hereunder if the receiving party can establish by reasonably competent evidence that such information: (a) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (b) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (d) is independently developed by the receiving party without any use of or reliance upon the Confidential Information of the disclosing party.

  15. Insurance. Customer shall carry and maintain during the Term, at its own cost and expense, commercial general liability insurance of at least $1 million per occurrence with a $2 million aggregate covering claims for bodily injury, death, personal injury or property damage. The coverages under this Section 14 shall be primary and may be obtained through any combination of primary or excess or umbrella liability insurance. Customer shall cause its insurers to (i) issue certificates of insurance evidencing that the coverages required under this Agreement are maintained in force and to provide IO with at least thirty (30) days’ written notice prior to any adverse modification, termination or cancellation, and (ii) name IO and its affiliates as additional insureds.

  16. Force Majeure. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war or terrorism, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental acts, casualty or failure of the Internet, provided that the affected party: (a) gives the other party prompt notice of such cause, and (b) uses its commercially reasonable efforts to correct promptly such failure or delay in performance.

  17. Notice. Except to the extent that notices may be sent by electronic mail as specifically set forth in this Agreement, any notice or communication required or permitted to be given hereunder (i) shall be made in writing, (ii) may be delivered by hand, mailed by registered or certified mail, return receipt requested, postage prepaid, or sent by recognized overnight courier maintaining proof of delivery (e.g., FedEx or UPS), (iii) shall be sent, if to Customer, at the address indicated on the signature page of this Agreement, and if to IO, to the address set forth below or at such other address as may hereafter be furnished in writing by either party hereto to the other, and (iv) shall be deemed to have been given as of the date it is actually delivered, or upon which delivery is refused, whichever is earlier. IO: 615 North 48th Street, Phoenix, AZ 85008, Attention: General Counsel.

  18. Governing Law. This Agreement is to be construed in accordance with and governed by the internal laws of the State of New York without giving effect to any choice of law rule. The parties hereby irrevocably consent to the personal and exclusive jurisdiction and venue of the federal and state courts of New York County, New York. In any litigation related to this Agreement, the prevailing party shall be entitled to reimbursement of its reasonable attorneys’ fees and costs from the other party. THE PARTIES WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY CLAIM OR ACTION, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, BETWEEN THE PARTIES ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS RELATED HERETO.

  19. Integration; Modifications; Severability; Waiver. This Agreement, together with all Attachments hereto, sets forth the entire agreement of the parties with respect to the subject matter hereof, and supersedes any prior agreements, promises, representations, understandings and negotiations between the parties with respect to said subject matter. Any modifications, amendments, supplements to or waivers of this Agreement must be in writing and executed by authorized representatives of both parties. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be invalid, then to the greatest extent possible, the remaining provisions of this Agreement shall remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party as specifically stated in this Agreement.

  20. Government Regulation. Customer will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item, data or information to anyone outside the U.S. in connection with this Agreement without first complying with applicable laws, rules and regulations, including all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business.

  21. Assignment. This Agreement shall not be assigned by Customer without IO’s prior written consent. IO may assign the agreement in whole or in part to an affiliate. This Agreement shall be binding upon and accrue to the benefit of any permitted assignee, and any such assignee shall agree to perform the obligations of the assignor.

  22. Third-Party Beneficiaries. Except with respect to the indemnification obligations hereunder, there shall be no third party beneficiaries to the Agreement, including customers, employees, agents or insurers.

  23. Relationship of the Parties. Nothing contained in this Agreement shall be deemed to establish any relationship of partnership, joint venture, employment, franchise or other agency or relationship between IO and Customer. Neither IO nor Customer have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.

  24. Use of Names. Customer agrees that IO may, upon written consent by Customer, publicly disclose that IO is providing services to Customer and may include Customer’s name in promotional materials, such as press releases or IO’s web site. Other than as may be set forth in an Order or as otherwise mutually agreed in writing, neither party may use the name, trade name, logo or trademark of the other party hereto without the prior written consent of an authorized representative of the other party.

  25. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be executed by either or all parties by facsimile signature, and any such facsimile signature shall be deemed an original signature.

THIS IO.CLOUD CUSTOMER AGREEMENT – TERMS AND CONDITIONS MAY BE MODIFIED FROM TIME TO TIME BY IO UPON WRITTEN NOTICE TO CUSTOMER, WHICH NOTICE MAY BE VIA ELECTRONIC MAIL, OR VIA POSTING TO THE IO.CLOUD DASHBOARD.