Master Services Agreement

1.1keylight#

keylight GmbH, a company incorporated in Berlin Germany (DE 815556911, registered at Amtsgericht Charlottenburg, HRB 164642B) having its principal place of business at Fasanenstr. 77, 10623 Berlin, Germany (“keylight”); and

1.2Customer#

[Name of Customer], a company incorporated in [COUNTRY], having its principal place of business at [ADDRESS] ("Customer").

3.1Ownership of the Service#

The Service is owned by keylight, and is protected by copyright, trade secret and other intellectual property laws. keylight and its licensors retain any and all rights, title and interest in and to the Service (including, without limitation, all Intellectual Property Rights), including all copies, modifications, extensions and derivative works thereof. Customer’s right to use the Service is limited to the rights expressly granted in this Agreement and the applicable Order Form(s). All rights not expressly granted to Customer are reserved and retained by keylight and its licensors.

3.2Ownership of Customer Data#

As between Customer and keylight, (a) all Customer Data is solely owned by Customer, and (b) Customer retains any and all rights, title and interest in and to the Customer Data, including all copies, modifications, extensions and derivative works thereof.

3.3Customer Data#

Customer grants to keylight a world-wide, limited license and the permission, for the Term, to host, copy, transmit, display Customer Data only to the extent necessary for keylight to provide the services and support in accordance with this agreement. Subject to the limited licenses granted herein, keylight acquires no right, title or interest from the Customer under this Agreement in or to any Customer Data.

5.1Customer Responsible for User Accounts#

Customer is responsible for all activity occurring under Customer’s User accounts (except to the extent any such activity is caused by keylight), and for complying with all laws and regulations applicable to Customer’s use of the Service. Customer also must (a) notify keylight promptly upon becoming aware of any unauthorized use of any Customer’s password or account (or any other breach of security of the Service), and (b) notify keylight promptly upon becoming aware of, and make a reasonable effort to stop, any unauthorized copying, distribution or other misuse of any aspect of the Service.

5.2Use Restrictions#

Customer must not, without keylight’s prior written consent, cause or permit the: (a) use, copying, modification, rental, lease, sublease, sublicense, transfer or other commercial exploitation of, or other third party access to, any element of the Service, except to the extent expressly permitted by this Agreement (Customer may allow its own subsidiaries and customers to access the functionality or output of the Service via interfaces, portal applications and the like, solely for Customer’s internal business purposes in accordance with the applicable Order Form; (b) creation of any modifications or derivative works of the Service; (c) reverse engineering of the Service; (d) gaining of unauthorized access to the Service or its related systems or networks (for example, by impersonation of another user of the Service or provision of false identity information); (e) interference with or disruption of the integrity or performance of the Service or the data contained therein (for example, via unauthorized benchmark testing or penetration testing); (f) sending, storing or use of any Customer Data in connection with the Service for which Customer lacks sufficient ownership or other rights; or (g) sending, storing or use of any infringing, obscene, threatening, libelous or otherwise unlawful or tortious material in connection with the Service (including, without limitation, any illegal spam, or any material that is harmful to children or violates any third party privacy rights). Customer also must use appropriate and adequate security measures to access the Service, and must not knowingly send, store or use any material containing any viruses, worms, Trojan horses or other malicious or harmful computer code, files, scripts, agents or programs in connection with the Service. keylight also reserves the right to take all steps reasonably necessary to protect the security, integrity or availability of the Service (e.g., by temporarily suspending access by anyone who introduces malicious code or attempts to do so), notwithstanding anything to the contrary in this Agreement.

5.3Customer PCI Responsibilities#

If Customer or its third party service provider processes any credit card information using the Service, Customer (and/or such service provider, as applicable) will: (a) comply with their responsibilities under the Payment Card Industry Data Security Standard (“PCI DSS”); (b) implement and maintain reasonable security measures to protect all cardholder data in their possession or control; and (c) not take any action in connection with using the Service that places keylight in non-compliance with the PCI DSS (for example, storing any cardholder data in any custom fields of the Service).

6.1Compliance with Privacy Laws#

Subject to the Data Processing Agreement (“DPA”) between the Parties, keylight and Customer will at all times comply with all applicable Privacy Laws. keylight will only use Customer Data in the manner permitted by this Agreement and all applicable Privacy Laws; provided, however, that:

• a.

  Customer hereby authorizes keylight and its Affiliates to use Customer Data solely to provide the Service to Customer and otherwise meet keylight’s obligations under this Agreement, including engaging sub processors and contractors to provide the Service to Customer in accordance with this Agreement (keylight remains liable for such Affiliates’, sub processors’ and contractors’ compliance with this Agreement);

• b.

  Customer hereby warrants that, to the extent required by applicable Privacy Laws applicable to keylight’s provision of the Service to Customer and the parties’ respective obligations under this Agreement, Customer has provided all proper notices under applicable Privacy Laws and obtained from its personnel, customers and all legally-required third parties all rights and permissions legally required in order to grant the authorizations above and to use the Service in the manner contemplated by this Agreement.

In the event of any conflicts of the provision of this Section 6.1 and the DPA, the DPA shall take precedence over this Section 6.1.

6.2Data Center#

Unless otherwise mutually agreed to in writing by the Parties, Customer’s Tenant(s) will be hosted in keylight’s European Union Data Center. Customer’s Tenant(s) may be accessed remotely for support and technical operations purposes from outside of the EU.

6.3Security of the Service and Compliance#

Throughout the term of this Agreement, keylight will maintain a data security program for the Service that will: (a) include reasonable administrative, physical, technical, organizational and other security measures to protect against unauthorized access to, or destruction, loss, unavailability or alteration of, any Customer Data processed or stored by the Service; (b) comply with the PCI DSS (or prevailing successor industry standard, if replaced); and (c) include reasonable and appropriate controls pursuant to keylight’s ISO 27001 audit (or other name if replaced); and (d) notify Customer within forty-eight (48) hours via email and/or telephone conversation upon becoming aware of any security breach of the Service. Subject to the DPA, keylight will be responsible for unauthorized access and damage to, and for unauthorized deletion, destruction and loss of, Customer Data solely to the extent arising from keylight’s negligent breach of its obligations under this Agreement pursuant to 14 Warranties and Commitments and 16 Limitation of liability below.

6.4Data Retention#

Regardless of the basis for expiration or termination of this Agreement and subject to the DPA, keylight will not be obligated to retain any Customer Data for longer than thirty (30) days after any such expiration or termination, unless otherwise agreed in advance by the Parties in writing.

6.5Requests by Customer#

In a manner that conforms to any time-related requirements set out in applicable Privacy Laws, and in any event as soon as reasonably practicable if sooner, keylight must comply (and must procure that all its subcontractors comply) with any reasonable requests by the Customer to:

• a.

  correct or delete inaccurate Customer Data;

• b.

  provide a copy of Customer Data that is stored in any form of retrieval or storage in the possession or control of keylight or that of its subcontractor;

• c.

  provide any requested assistance to allow the Customer to comply with Privacy Laws.

6.6Business Continuity & Disaster Recovery#

keylight will implement and maintain throughout the term of this Agreement reasonable business continuity and disaster recovery plans to assure availability of the Customer Data following any significant interruption or failure of critical business processes or systems affecting the Service.

6.7Support & Service Level Agreement#

keylight will provide technical support for the Service in accordance with Exhibit A to this Agreement (Support and Service Level Agreement) as long as Customer is entitled to receive support under the applicable Order Form and this Agreement.

6.8Obligations#

keylight must in respect of Customer Data, comply with the following obligations: (a) take reasonable steps to ensure the reliability of keylight’s personnel who have access to Customer’s personal information and is responsible for the acts and omissions of its personnel who have access to Customer’s personal information, as if those acts or omissions were its own; and (b) immediately notify Customer of any privacy breaches, or suspected privacy breaches in connection with the keylight’s access, processing and use of personal information and providing all necessary assistance (including complying with reasonable directions) to confirm and remedy the breach.

7.1Term of Agreement#

This Agreement will begin on the Effective Date and continue in effect until all Order Forms and SOW expire or are terminated in accordance with this Agreement (e.g., 8 Termination).

7.2Term of Order Forms#

The term of each Order Form will be set forth therein, starting on the effective date specified therein and continuing for the initial Service Term specified in each Order Form, unless earlier terminated pursuant to the terms of the respective Order Forms or this Agreement (“Initial Service Term”).

PLEASE CAREFULLY REVIEW THESE AUTOMATIC RENEWAL TERMS AND THOSE IN 9.2 Modification of Fees Upon Renewal. Unless otherwise set forth in the applicable Order Form, or unless the Order Form is terminated in accordance with 8.2 Termination of Order Form or SOW, upon expiration of the Initial Service Term, the relevant Order Form will renew automatically on an annual basis for subsequent renewal terms of twelve (12) months (each a “Renewal Service Term“), unless either Party notifies the other Party in writing, at least thirty (30) days (subject to 9.2 Modification of Fees Upon Renewal) prior to the end of the then-current Service Term, that it chooses not to renew. The Initial Service Term and all Renewal Service Terms (if any) are referred to in this Agreement collectively as the “Service Term.”

8.1Termination of Agreement#

Neither Party will have the right to terminate this Agreement without legally valid cause (no termination “for convenience”).

8.2Termination of Order Form or SOW#

Either Party may terminate any Order Forms and/or SOW (i) in accordance with their respective terms or (ii) pursuant to the termination provisions in this Agreement: either Party may terminate any Order Forms or SOW for cause upon written notice if the other Party fails to cure any material breach thereof, or any material breach of this Agreement, within thirty (30) days after receiving reasonably detailed written notice from the other Party alleging the breach. For the avoidance of doubt non-payment of an invoice which is due and outstanding shall be deemed a material breach under this provision.

8.3Discontinuity of service: Special Termination Right#

In case keylight decides to discontinue the Service or any part of the service, keylight may terminate this Agreement and any Order Form and/or SOW upon six months written notice to the Customer.

8.4Effect of Expiration or Termination of Agreement#

The following sections of this Agreement will survive any expiration or termination of this Agreement:

2 Contract structure and order-of-precedence, 3 Ownership of service and customer data, 5.2 Use Restrictions, 7 Terms of agreements, 8 Termination, 10 Fees and payment for purchased services, 11 Non-production usage, 12 Third party interactions, 13 Professional services, 14.4 Warranty Disclaimers, 15 Indemnification, 16 Limitation of liability, 17 Confidentiality, 18 General, and 19 Definitions.

The applicable Order Forms and SOW may identify additional terms that will survive any expiration or termination of this Agreement.

8.5Effect of Termination of Order Form or SOW#

Subject to the exclusive remedy provisions in this Agreement: (a) if Customer terminates an Order Form, SOW and/or this Agreement for uncured material breach in accordance with this Agreement, Customer will be entitled to a refund, on a pro rata basis, of any Fees paid thereunder that are unused as of the termination effective date; and (b) if keylight terminates an Order Form, SOW and/or this Agreement for uncured material breach in accordance with 8 Termination, all amounts owed by Customer thereunder will become due and payable.

9.1Purchase Orders#

If Customer requires that a purchase order confirmation (“POC”) be issued before making payment under an Order Form or SOW, keylight shall promptly provide such valid POC conforming to the applicable Order Form or SOW in time for Customer to meet its payment obligations. The terms and conditions of any purchase order (or of any other unilateral Customer document not agreed in writing by authorized representatives of both Parties) will have no effect on the rights or obligations of the Parties, regardless of any failure to object to such terms and conditions.

9.2Modification of Fees Upon Renewal#

keylight reserves the right to modify the Fees for its Service under one or more Order Forms, effective upon commencement of the next Renewal Service Term of the relevant Order Form(s), by notifying Customer of such change in writing at least thirty (30) days before the end of the then-current Service Term, unless Customer notifies keylight in writing, at least twenty (20) days prior to the end of the then-current Service Term, that Customer chooses not to renew such Order Form(s).

10.1Fees#

Customer must pay all Fees. Except to the extent otherwise expressly stated in this Agreement or in an Order Form or SOW:

• a.

  All obligations to pay Fees are non-cancelable and non-refundable; and

• b.

  Customer must make all payments without setoffs, withholdings or deductions of any kind, unless Customer’s counter claim is undisputed or legally established by a court of law.

10.2Invoicing and Payment#

Invoiced Fees are due 15 days from the invoice date, that is, Customer must pay all Fees due under all Order Forms and SOW within fifteen (15) days after Customer receives each invoice. Customer is responsible for providing complete and accurate billing and contact information to keylight and notifying keylight of any changes to such information.

10.3Consequences of Non-Payment#

If Customer fails to make any payments required under any Order Forms or SOW, then in addition to any other rights keylight may have under this Agreement or applicable law:

• a.

  Customer shall pay interest of one and one-half percent (1.5%) per month on any outstanding balance under each delinquent invoice, or the maximum permitted by law (whichever is less);

• b.

  keylight will be entitled to recover its reasonable attorneys’ fees, other legal expenses (including expert witness fees and expenses on appeal) and other reasonable costs to collect such amounts; and

• c.

  If Customer’s account remains delinquent (with respect to payment of a valid invoice) for thirty (30) days after receipt of a delinquency notice from keylight, which may be provided via email to Customer’s designated billing contact, keylight may temporarily suspend Customer’s access to the Service for up to ninety (90) days to pursue good faith negotiations before pursuing termination for cause pursuant to Section 8.2 of this Agreement. Customer will continue to incur and owe all applicable Fees irrespective of any such Service suspension based on such Customer delinquency.

10.4Payment Disputes#

keylight will not exercise their rights under 10.3 Consequences of Non-Payment above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

10.5Future Functionality#

Customer agrees that purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by keylight regarding future functionality or features.

15.1By keylight#

keylight will defend Customer, its Affiliate (if the Affiliate signed the Order Form), officers, directors and employees from and against any claims by a third party (other than Customer or its Affiliates) based on a final decision by a court of competent jurisdiction that use of the Service in accordance with this Agreement and the applicable Order Form(s) infringes a copyright in any country or a patent of the U.S.A., a member state of the European Union, Canada or Australia (collectively, “Claims”). keylight will also indemnify Customer and its Affiliates, officers, directors and employees by paying all damages, costs and expenses (including reasonable legal fees and costs) awarded by a court of competent jurisdiction in a final, non-appealable judgment, or agreed in a written settlement agreement agreed in writing by keylight, arising out of such Claims.

If (a) any aspect of the Service is found by a court in a final, non-appealable judgment, or in keylight’s reasonable opinion is likely to be found by a court in a final, non-appealable judgment, to infringe upon a third party Intellectual Property Right, or (b) the continued use of the Service is enjoined, then keylight will promptly and at its own expense: (i) obtain for Customer the right to continue using the Service in accordance with this Agreement and the applicable Order Form(s); (ii) modify the item(s) in question to no longer be infringing; or (iii) replace such item(s) with a non-infringing functional equivalent. If, after reasonable efforts, keylight determines in good faith that options (i), (ii) and (iii) are not feasible, keylight will remove the infringing item(s) from the Service and refund to Customer on a pro rata basis any Fees paid by Customer for such infringing element(s) that are unused as of the removal date.

keylight will have no obligation or liability for any Claim under this section to the extent arising from: (x) the combination, operation or use of the Service with any product, device, software or service not supplied by keylight to the extent the combination creates the infringement; (y) the unauthorized alteration or modification by Customer of the Service, or (z) keylight’s compliance with Customer’s designs, specifications, requests, or instructions in providing Professional Services to the extent the Claim is based on such compliance. In addition, the foregoing obligation does not apply to the extent that such Claims arise from any allegation of or relating to any:

• (a)

  Third-Party Materials;

• (b)

  negligence, abuse, misapplication, or misuse of the Content or any deliverables other than by keylight;

• (d)

  events or circumstances outside of keylight's control (including any bugs, defects, or malfunctions of any third-party software, hardware, firmware, system, or network).

15.2By Customer#

Customer will defend keylight, its Affiliates, officers, directors and employees from and against any claims asserted by a third party based on a breach by Customer of 5 Customer responsibilities of this Agreement. Customer will also indemnify keylight and its Affiliates, officers, directors and employees by paying all damages, costs and expenses (including reasonable legal fees and costs) awarded by a court of competent jurisdiction in a final, non-appealable judgment, or agreed in a written settlement agreement agreed by Customer in writing, arising out of the third party claims described in this section.

15.3Requirements for Indemnification#

Each Party’s respective defense and indemnity obligations under 15.1 By keylight and 15.2 By Customer are contingent upon the indemnified Party: (a) promptly giving notice of the third party claim to the defending/indemnifying Party once the claim is known; (b) giving the defending/indemnifying Party sole control of the defense and settlement of the claim and not compromising or settling the claim without the defending/indemnifying Party’s approval (though the defending/indemnifying Party must not settle such claim unless the settlement unconditionally releases the other Party of all liability and does not adversely affect the other Party’s business or service in a material manner); and (c) providing appropriate information and reasonable cooperation to the defending/indemnifying Party in connection with the claim.

THE FOREGOING ARE THE DEFENDING/INDEMNIFYING PARTY’S SOLE OBLIGATIONS, AND THE INDEMNIFIED PARTY’S EXCLUSIVE REMEDIES WITH RESPECT TO INDEMNIFICATION AND THE MATTERS ADDRESSED IN THIS SECTION 15 Indemnification.

17.1Definition#

As used in this Agreement, “Confidential Information” means information and materials provided by the Disclosing Party (“Discloser”) to the Party receiving such information or materials (“Recipient”) that (a) are identified as confidential at the time of disclosure, or (b) a reasonable person in the relevant industries should understand to be confidential based on the nature of the information and materials and all other relevant factors. For the avoidance of doubt, Customer’s Confidential Information includes, without limitation, the Customer Data and Customer’s non-public business plans, and keylight’s Confidential Information includes, without limitation, all pricing terms offered to Customer under any Order Form, keylight’s non-public business plans, all non-public aspects of the keylight Technology, and the results of any evaluation of the Service performed by or on behalf of Customer for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

17.2Purpose#

Recipient must not use any of Discloser’s Confidential Information for any purpose other than carrying out Recipient’s obligations or exercising its rights under this Agreement (the “Purpose”). For the avoidance of doubt, use of Confidential Information by keylight [in connection with the Services and keylight’s improvement of service offerings] in an aggregated and anonymized manner that does not include Personal Data is not prohibited.

17.3Permitted Disclosures and Obligations#

Recipient also must not disclose to any third party any Confidential Information, other than to Recipient’s Affiliates, contractors and consultants who (a) need to know such information in order to fulfill the Purpose, and (b) are bound by confidentiality obligations substantially similar to Recipient’s under this Agreement (each Party is fully responsible for its respective Affiliates’, contractors’ and consultants’ compliance with this Agreement). Recipient must treat all Discloser Confidential Information with the same degree of care Recipient gives to its own Confidential Information, but not less than reasonable care. Further, neither Party may disclose publicly the existence or nature of any negotiations, discussions or consultations in progress between the Parties without the prior written consent of the other Party. Recipient and its Affiliates, contractors and consultants who receive Confidential Information hereunder must: (i) not use any such Confidential Information to compete with Discloser or in any other way except as reasonably necessary for the Purpose; (ii) not reverse engineer, disassemble or decompile any prototypes, software or other tangible objects received from Discloser under this Agreement that embody Confidential Information; (iii) promptly notify Discloser of any unauthorized use or disclosure of its Confidential Information of which Recipient becomes aware; and (iv) reasonably assist Discloser in remedying any such unauthorized use or disclosure. For the avoidance of doubt, a security breach involving Customer Data will be governed by 6.3 Security of the Service and Compliance, and not 17 Confidentiality.

17.4Exclusions#

Recipient’s obligations under 17 Confidentiality will not apply to any Discloser Confidential Information that Recipient can prove: (a) is or becomes part of in the public domain through no fault of Recipient; (b) is rightfully in Recipient’s possession free of any confidentiality obligation; (c) was independently developed by Recipient without use of any Discloser Confidential Information; or (d) is communicated by Discloser to an unaffiliated third party free of any confidentiality obligation. A disclosure by Recipient of any Confidential Information (i) in response to a valid order or other legal process issued by a court or other governmental body having jurisdiction, (ii) as otherwise required by applicable law, or (iii) necessary to establish the rights of either Party under this Agreement will not be a breach of this Agreement if, to the extent legally permitted, Recipient gives Discloser prompt notice and reasonable cooperation so Discloser may seek to prevent or limit such disclosure.

17.5Ownership and Destruction of Confidential Information#

As between Discloser and Recipient, all Discloser Confidential Information is the property of Discloser, and no license or other rights are granted or implied hereby. All materials provided to Recipient by Discloser, whether or not they contain or disclose Confidential Information, are Discloser’s property. Promptly after any request by Discloser, Recipient will (a) destroy or return to Discloser all Confidential Information and materials in Recipient’s possession or control, and (b) upon written request by Discloser, confirm such return/destruction in writing; provided, however, that the Recipient may retain electronic copies of any computer records or electronic files containing any Discloser Confidential Information that have been created pursuant to Recipient’s standard, reasonable archiving and backup practices, as long as Recipient continues to comply with this Agreement with respect to such electronic backup copies for so long as such Confidential Information is retained.

17.6Export#

Exchange of Confidential Information under this Agreement is subject to all applicable export laws and regulations. Except to the extent permitted by a separate written agreement, the Parties will not disclose any information requiring an authorization to be exported. Each Party also specifically agrees to comply with all applicable laws, regulations, orders and sanctions relating to prohibitions or limitations on relationships or transactions with prohibited countries or individuals.

17.7Confidentiality Period#

Recipient’s obligations with respect to Discloser’s Confidential Information under 17 Confidentiality will remain in effect for the term of this Agreement and for three (3) years after any expiration or termination of this Agreement.

18.1Governing Law and Dispute Resolution#

This Agreement is governed by German law. Any disputes, actions, claims or causes of action arising out of or relating to this Agreement or the Service will be subject to the exclusive jurisdiction of the courts located in Berlin, Germany. Other than with respect to seeking injunctive relief in connection with matters that qualify for such an extraordinary remedy under applicable law, neither Party may initiate any litigation against the other Party until after providing clear written notice of its intention to do so and first making a good faith effort to resolve the dispute informally through escalation to an appropriate level of executive management of both Parties for at least thirty (30) days after providing such notice.

18.2Assignment & Other Transfers#

Neither Party may assign, sublicense or otherwise transfer (by operation of law or otherwise) this Agreement, or any of a Party’s rights or obligations under this Agreement, to any third party without the other Party’s prior written consent, which consent must not be unreasonably withheld, delayed or conditioned; provided, however, that upon written notice to the other Party, either Party may assign or otherwise transfer this Agreement in whole, along with all associated Order Forms and SOW (and all its rights and obligations thereunder), (a) to a successor-in-interest in connection with a merger, acquisition, reorganization, a sale of most or all of its assets, or other change of control, or (b) to its Affiliate.

Notwithstanding anything to the contrary in this section, however: (i) in the event of any permitted transfer by Customer under this section to a competitor of keylight, keylight will have the right to terminate this Agreement, including all associated Order Forms and SOW, for cause under 8 Termination (in the event of such a termination, keylight will promptly refund to Customer, on a pro rata basis, all Fees prepaid by Customer under all Order Forms and SOW then in effect that are unused as of the termination effective date).

In the event of a transfer by Customer that is permitted under this section, the rights granted under this Agreement shall continue to be subject to the same usage limitations that applied under applicable Order Forms prior to the transfer (e.g., any transaction volume terms, and any limitations to particular Customer legal entities, business units, projects, brands, products and/or services set forth therein). Any purported assignment or other transfer in violation of this section is void. Subject to the terms of this section, this Agreement will bind and inure to the benefit of the Parties and their respective permitted successors and transferees.

18.3Force Majeure#

If either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (other than payment obligations) due to any cause beyond its reasonable control, e.g., war, riots, labor unrest, fire, earthquake, flood, national health emergencies hurricane, other natural disasters and acts of God, Internet service failures or delays, and denial of service attacks (collectively, “Force Majeure”), the affected Party’s performance will be excused for the resulting period of delay or inability to perform.

18.4Marketing#

keylight is permitted to identify Customer as a keylight customer on keylight’s website(s) and marketing materials.

18.5Independent Contractors#

The Parties are independent contracting parties. Neither Party has, or will hold itself out as having, any right or authority to incur any obligation on behalf of the other Party. The Parties’ relationship in connection with this Agreement will not be construed as a joint venture, partnership, franchise, employment, or agency relationship, or as imposing any liability upon either Party that otherwise might result from such a relationship.

18.6Notices#

All notices (e.g., notice of termination of this Agreement or an Order Form based on an alleged material breach) required under this Agreement must be delivered to the other Party in writing (a) in person, (b) by nationally recognized overnight delivery service. With respect to all other notices, Customer may email keylight at legal@keylight.com. Either Party may change its notice address by giving written notice to the other Party.

18.7Anti-Corruption#

Customer acknowledges it has not received or been offered any illegal or otherwise improper bribe, kickback, payment, gift or other thing of value by any keylight employee, representative or agent in connection with this Agreement. Customer will use reasonable efforts to promptly notify keylight at legal@keylight.com if Customer becomes aware of any circumstances that are contrary to this acknowledgement.

18.8Execution#

This Agreement may be signed electronically and in counterparts, in which case each signed copy will be deemed an original as though both signatures appeared on the same document.

18.9Entire Agreement#

This Agreement, together with any applicable Order Forms and SOW (including any other terms referenced in any of those documents), comprises the entire agreement between Customer and keylight regarding the subject matter of this Agreement, supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the Parties regarding such subject matter, and may only be modified by a document signed by authorized representatives of both Parties.

18.10Severability#

If one or more of the terms of the agreement are found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining terms will not be affected.

21.1Support Contacts#

Customer will appoint designated support contact person(s) knowledgeable regarding the Service for purposes of contacting keylight’s support team about technical support issues with the Service, including reporting such issues via keylight’s designated support portal / channel.

21.2Non-Production Tenants#

For all support issues relating to keylight’s Non-Production Tenants, keylight will make reasonable efforts to respond promptly to all tickets submitted through keylight’s designated support portal / channel, in any event within two (2) Business Days after receipt. If keylight fails to meet this response time commitment, Customer’s exclusive remedy and keylight’s sole obligation will be: (a) for keylight to make reasonable efforts to respond promptly after Customer notifies keylight that it failed to meet this response time commitment; and (b) if keylight fails to meet this response time commitment five (5) times during a 3-month period, for Customer to terminate the applicable Order Form and receive a refund, on a pro rata basis, of any Fees paid for the Non-Production Tenant(s) that are unused as of the termination effective date.

21.3Production Tenants#

21.4Definition of Severity Levels#

Severity Level 0 (Service Unavailability): Customer experiences complete loss of Service, meeting the definition of “Unavailable” below.

Severity Level 1 (Severe Issues): Customer experiences a severe defect or configuration issue with the Service that materially impacts Customer’s business in a negative way (excluding Service failures that qualify as Severity Level 0).

Severity Level 2 (Delayed Performance): Customer experiences transactional and operational slowness in the Service (excluding Service issues that qualify as Severity Level 0 or 1).

Severity Level 3 (Routine Requests): Routine Service support requests relating to issues that don’t qualify as Severity Level 0, 1 or 2.

21.5Assignment of Severity Levels#

keylight will determine the Severity Level assigned to each support issue in its reasonable discretion, but taking into consideration the Severity Level input by Customer.

21.6Uptime Commitment#

The Annual Uptime Percentage for the Service will be 99.98% (the “Uptime Commitment”). Subject to the exclusions described in Section 21.7 Exclusions from Annual Uptime Percentage below, “Annual Uptime Percentage” is calculated by subtracting from 100% the percentage of 1-minute periods during any annual billing cycle (i.e., 12 calendar months) in which Customer’s Production Tenant(s) is(are) Unavailable out of the total number of minutes in that annual billing cycle. “Unavailable” and “Unavailability” mean that, in any 1-minute period, all connection requests received by Customer’s Production Tenant(s) failed to process (each a “Failed Connection”); provided, however, that no Failed Connection will be counted as a part of more than one such 1-minute period. The Annual Uptime Percentage will be measured based on the industry standard monitoring tools keylight uses.

21.7Exclusions from Annual Uptime Percentage#

Notwithstanding anything to the contrary in this exhibit, any Unavailability issues resulting from any of the following will be excluded from calculation of Annual Uptime Percentage:

• a.

  Regularly scheduled maintenance of the Service that does not exceed six (6) hours per 3-month period and is communicated by keylight at least 3 days in advance via email notifications to Customer. Unless otherwise communicated, regularly scheduled maintenance time is typically scheduled to occur once per month.

• b.

  Any issues with a third party service to which Customer subscribes (e.g., salesforce.com, Avalara, or a payment gateway);

• c.

  Any problems not caused by keylight that result from (i) computing or networking hardware, (ii) other equipment or software under Customer’s control, or (iii) the Internet;

• d.

  keylight’s suspension or termination of the Service in accordance with the Agreement and/or its associated Order Form;

• e.

  Software that has been subject to unauthorized modification by Customer; or

• f.

  Negligent or intentional misuse of the Service by Customer.