LOCKTERA Subscription Agreement

Effective: July 18, 2023

This Locktera, Inc. (“LOCKTERA”) Software-as-a-Service Subscription Agreement (collectively with the terms of any Order Form the “Agreement”) for a subscription to the Locktera Share Software-as-a-Service (the “Locktera Share Service”) is between Locktera and the Customer (individual or entity) that has purchased a subscription to the Locktera Share Service (“Customer”). If you are an individual using the Locktera Share Services on behalf of a corporation, partnership or other entity, then that entity will be the Customer, and you represent and warrant that you are authorized to enter into this Agreement. Each of Locktera and Customer are individually referred to herein as a “Party” and collectively as the “Parties”

Customer agrees that from time-to-time Locktera may modify this Agreement and that any such changes shall become effective immediately. Locktera will use reasonable commercial efforts to notify Customer of the changes through communications including without limitation online, email or other means. Customer may be required to click to accept the modified Agreement before using the Locktera Share Service and continued use of the Locktera Share Service shall constitute Customer’s acceptance of the version of the Agreement in effect at the time the modified Subscription Agreement begins.

IMPORTANT: IF CUSTOMER DOES NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, CUSTOMER SHALL NOT INSTALL, ACCESS OR USE THE LOCKTERA SHARE SERVICE. BY CHECKING THE ACCEPTANCE BOX OR INSTALLING OR USING ANY PORTION OF THE LOCKTERA SHARE SERVICE, CUSTOMER IS ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.

The Agreement is effective between Customer and Locktera as of the date of the last signature on an Order Form incorporating this Subscription Agreement, or if not signed, on Customer’s acceptance of the Agreement.

1. DEFINITIONS. The following definitions shall apply unless otherwise stated:

1.1  “Account Data” means data about Customer provided to Locktera in connection with the administration of the Customer’s Locktera account, or as necessary for Customer to use the Locktera Services. For example, first and last name, username, phone number and email address of a User, or other customer-provided contact, license consumption data, and billing information.

1.2  “Affiliate” means an entity that controls, is controlled by or is under common control with another entity, where “control” refers to ownership of more than 50% of the outstanding shares or securities representing the right to vote for the election of directors or other managing authority of another entity.

1.3  “Agreement” means each Order Form that incorporates this Subscription Agreement, including all attachments and referenced terms and conditions.

1.4  “Customer” means (a) in the case of an individual accepting the Agreement in such individual’s capacity, such individual; (b) the entity or organization listed on an Order Form or on whose behalf the Agreement is otherwise accepted; and (c) any other entity or organization deemed to be a Customer by the terms of this Subscription Agreement.

1.5  “Customer Data” means data that is ingested into, and processed by, the Locktera Services from Customer’s data sources, and the data insights generated by the Locktera Services for the benefit of Customer. For example, the Customer’s content files and the organization’s user analytic and performance reports.

1.6 “Data Protection Law” means all data protection laws and regulations applicable to the processing of Customer Personal Data under the Agreement.

1.7  “Documentation” means LOCKTERA’s online user guides, documentation, help and training materials, as updated from time to time, accessible via locktera.com or login to the applicable LOCKTERA Services.

1.8  “Locktera” means the Locktera entity specified in the Order Form. If no Order Form applies, Locktera means the Locktera entity, if any, organized in the country where the Customer is headquartered, or if no such entity exists, Locktera inc, a Texas Corporation.

1.9  “Locktera Materials” means all trainings, dashboards, presentations, report templates or other templates, documentation, materials, methodologies, processes, techniques, ideas, concepts, trade secrets, know-how, works of authorship, formulas, algorithms, databases, scripts, configurations, logos, symbols, designs, and other inventions embodied in the Locktera Services and/or that Locktera develops or supplies in connection with the Locktera Services, including all copies, portions, modifications and improvements thereof, and all derivative works of any of the foregoing. Locktera Materials do not include Customer Data.

1.10  “Locktera Services” means the Locktera Share Service, Support, Professional Services, and Locktera Materials.

1.11  “Locktera Share Service” (may be referred to as “Products”) means the Locktera software services products, capabilities and services as identified in an Order Form, the Documentation, and any updates to the services provided as part of Support or during the Term. The Locktera Services may be provided in the form of software in object-code, and/or cloud and hosted services provided by or on behalf of Locktera and in the form of electronic reports, analyses, and statistical and performance-related information.

1.12  “Intellectual Property Rights” means patents and patent rights, rights of priority, mask work rights, copyrights, moral rights, trade secrets, know-how, trademarks, trade names, logos, service marks, designs and other designations of source, any other form of intellectual, industrial property, proprietary or other protected rights in connection therewith, recognized in the world, whether or not registered, for the full period thereof, and all extensions and renewals thereof, and all applications for registration in connection with the foregoing.

1.13  “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

1.14  “Order Form” means each Locktera order form, product schedule, quote or other order document which incorporates this Subscription Agreement and identifies the Locktera Services ordered by Customer and agreed to between Locktera and Customer. An Order Form may include a SOW.

1.15  “Personal Data” means any information that by itself or in combination does or can identify a specific individual or as defined in the Data Protection Law.

1.16  “Professional Services” means any implementation, training, consulting, performance analysis or other professional services provided by Locktera as set forth in an Order Form or SOW.

1.17  “Restricted Information” means any confidential or Personal Data that is protected by law and that requires the highest level of access control and security protection, whether in storage or in transit. Restricted Information includes, but is not limited to: (a) government-issued identification numbers, including social security numbers or other tax identification numbers, driver’s license numbers, passport numbers or other state-issued identification numbers; (b) unencrypted passwords or other authentication credentials or the combination of a username or email address along with a password or security question that would permit access to an online account, (c) protected health information, or any electronic protected health information (or other information subject to the HIPAA and HITECH Acts); (d) credit, debit or payment card information, financial or bank account information, or other information subject to PCI security standards; (e) data relating to a person under the age of 13 years old or subject to the Children’s Online Privacy Protection Act of 1998, 15 U.S.C. 6501-6505; (f) data that is subject to regulatory or contractual handling requirements under the Gramm-Leach-Bliley Act 9 (GLBA); (g) data that is subject to regulatory or contractual handling requirements under the General Data Protection Regulation (GDPR)(EU); (h) data that is subject to regulatory or contractual handling requirements under the Federal Act on Data Protection (FADP) (Switzerland); (i) data that is subject to regulatory or contractual handling requirements under the California Protection Act (CPP); (j) data that is subject to regulatory or contractual handling requirements under the Data Protection Act 2018 (DPA) (UK); and (g) data classified as “special category data” (or similar term) under Data Protection Law, including racial or ethnic origin, political opinions, religious beliefs, trade union membership, physical or mental health or condition, sexual orientation, genetic data, biometric data, or the commission or alleged commission any crime or offense about residents of Switzerland, or any member country of the European Union.

1.18  “Service Period” means the stated period of time that Professional Services are to be provided to Customer as set forth in an Order Form.

1.19  “Subsidiary” means a subsidiary which is greater than fifty (50%) percent owned by a party.

1.20  “Support” means the updates for supported versions of the Locktera Share Service generally made available from time to time, and technical support services other than Professional Services, provided by Locktera in connection with the Locktera Share Service.

1.21  “Term” means the initial subscription period to the Locktera Share Service and Support as set forth in an Order Form together with any renewal of that subscription period (each a “Renewal Term”).

1.22  “Third-Party User” is a third-party contractor or vendor designated by Customer as a User in accordance with Section 3.

1.23  “Usage Data” means data and related analysis about deployment, configuration, operation, use, maintenance, and support of the Locktera Services, and the technology the Customer monitors using the Locktera Services. For example, features or capabilities of the Locktera Offering being utilized or consumed, configuration of the Locktera Offering, and performance and diagnostic state of the Locktera Offering.

1.24  “Users” means Customer or its Subsidiary’s employees and Third-Party Users authorized by Customer to use the Locktera Share Service.

2. AGREEMENT AND ORDER OF PRECEDENCE. The Agreement governs Customer’s and its Users’ use of the applicable Locktera Services. Each Order Form that incorporates this Subscription Agreement constitutes a separate Agreement and governs its own subject-matter and not any other Agreement. In the event of a conflict between an Order Form and this Subscription Agreement, this Subscription Agreement will take precedence, except as otherwise stated.

3. THIRD PARTIES AND PARTNERS.

3.1  Third-Party Users. Customer may designate one or more Third-Party Users as required to facilitate Customer’s permitted use of the Locktera Share Service solely for Customer’s or its Subsidiary’s internal business operations and benefit, subject to the following. Each Third-Party User must be subject to non-disclosure obligations consistent with Section 10 (Confidentiality) and shall otherwise comply with the terms of the Agreement. Customer accepts responsibility for the acts and omissions of such Third-Party Users and agrees to enforce (and assist Locktera in enforcing) the terms of the Agreement against Third-Party Users. Locktera shall have no direct or indirect obligation or liability to any Third-Party User.

3.2  Partners. “End User” means a User for whom use of or access to the Locktera Share Service has been obtained through a third party (“Partner”) who has a limited right to resell the Locktera Services (directly or through a second-tier partner or marketplace). The terms of this Subscription Agreement (excluding terms relating to delivery of and payment for the Locktera Service) govern the use of any Locktera Service by or for the benefit of an End User. By its use of the Locktera Services, such End User agrees to and is bound by the Resale End User Terms, which are incorporated by reference into the contract for such resale transaction as if such End User was a Customer hereunder. Locktera is, and both End User and Partner hereby acknowledge and appoint Locktera as, a third-party beneficiary of the Resale End User Terms. Locktera is providing the Locktera Services in reliance on its status as a third-party beneficiary to the Resale End User Terms, and Locktera shall be entitled to enforce the Resale End User Terms directly against the End User. Locktera is not responsible for any acts, omissions, products or services provided by Partner. Partner is not authorized to modify the Resale End User Terms or make any commitment for Locktera, and Locktera is not bound by any obligations to End User other than as set forth in the Resale End User Terms. End User’s access to and use of Locktera Services is determined by the Order Form between Partner and Locktera identifying the End User. The amount paid or payable by the Partner for End User’s use of the Locktera Services will be deemed the amount paid or payable by Customer under the Agreement for the purpose of Section17 (Limitation of Liability). For purposes of this Section, Locktera means Locktera inc or its designated Affiliate.

4. SOFTWARE LICENSE AND SUPPORT.

4.1  Locktera Share Service. During the Term, and subject to Customer’s compliance with the Agreement, Locktera grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right and license solely for Customer and its Users to, as applicable, install, access and use the Locktera Share Services in accordance with the Documentation, subject to the territory, scope, type of use, and limitations on deployment and as otherwise stated in the applicable Order Form.

4.2  Support. Locktera will provide Support for the Locktera Share Service in accordance with the support levels and fees identified in the applicable Order Form and the Locktera online support and service level policies.

5. PROFESSIONAL SERVICES.

5.1  Statements of Work. During the Service Period, Locktera will provide the Professional Services identified in an Order Form, which may be further described in SOWs attached to the Order Form. Each SOW may include, without limitation: (a) a description of the scope and type of Professional Services; (b) the location where the Professional Services will be performed; (c) the schedule for performance; and (d) any applicable additional fees, out of pocket expenses, and payment terms.

5.2  Use of Locktera Materials. During the Term and/or Service Period, and subject to Customer’s compliance with the Agreement, Locktera grants Customer a limited, non-exclusive, non-transferable, non-sublicensable license to use the Locktera Materials that Locktera may provide to Customer in connection with the Professional Services or otherwise to be used solely for Customer’s internal business purposes by Customer and its Users in connection with its subscription to the Locktera Services. Training sessions may not be recorded without Locktera’s prior written consent.

6. OWNERSHIP AND OTHER RIGHTS.

6.1  Locktera Services. This is not an agreement for custom development or “work for hire.” Locktera Services are licensed, not assigned, to Customer. Except for the limited licenses set forth herein, Customer shall not acquire any rights, title or interest in the Locktera Services, and Locktera or its licensors, as applicable, shall retain all ownership, including without limitation, Intellectual Property Rights, in the Locktera Services.

6.2  Customer Data. As between the parties, Customer shall retain all ownership, including without limitation, Intellectual Property Rights, in the Customer Data. Customer grants to Locktera a limited, non-exclusive, royalty-free, worldwide license to use the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Locktera to provide the Locktera Services to Customer or as otherwise agreed by Customer in writing.

6.3  Feedback and Usage Data. At its option, Customer may provide feedback or suggestions about the Locktera Services to Locktera (“Feedback”). Customer grants to Locktera and its Affiliates a non- exclusive, worldwide, royalty-free, fully paid, sublicensable, perpetual, and irrevocable right and license to use, modify, distribute, and commercialize the Feedback without restriction or obligation. Locktera may monitor and collect Usage Data to improve Locktera’s current and future services, and if aggregated and not identifying Customer or any individual, for industry analysis, benchmarking, and analytics.

7. PAYMENT.

7.1  Pricing. Prices for the Locktera Services are set forth in the applicable Order Form.

7.2  Invoicing and Payments. Unless otherwise stated in an Order Form, fees are invoiced in advance and Customer shall pay Locktera the amounts invoiced in the specified currency. If Customer fails to pay any fee when due, without limiting any of its other rights or remedies, Locktera may impose a late payment charge not to exceed the maximum rate allowed by law, and/or Locktera may suspend performance until Locktera receives all past due amounts from Customer. Should Locktera be forced to commence legal action to collect fees owed, Locktera is entitled to recover its reasonable attorneys’ fees and direct costs of collection. Multiple Order Forms may be executed under this Subscription Agreement and multiple invoices may be issued under each Order Form. Customer shall have no right to set-off or reduce payments owed under any Order Form without Locktera’s prior written consent. Customer’s obligation to pay for Locktera Services ordered under one Order Form is separate from, and not contingent on delivery or performance of Locktera Services ordered under any other Order Form. In the event of a good faith dispute of payment on an invoice, within fifteen (15) days of receipt of the invoice, Customer will notify Locktera in writing of the dispute and the parties will use commercially reasonable efforts to resolve such dispute. Undisputed amounts remain payable by Customer. The existence of a dispute shall not restrict Locktera’s rights to collect such amounts or enforce its right to payment.

7.3  Purchase Orders. Upon request for Customer’s administrative convenience, Locktera will reference Customer’s purchase order/reference number (“PO”) on its invoices, provided the PO references the Order Form, is received reasonably prior to the date of the invoice, and is not conditioned on the PO being signed by Customer. The terms stated in any Customer PO shall have no force or effect. Locktera has the right to issue an invoice and collect payment without a corresponding PO.

7.4  Delivery. Locktera shall make the Locktera Services available by electronic delivery, and acceptance is deemed to occur when electronic notice is sent that the purchased items are available.

7.5  Renewal Term Pricing. Fees for each Renewal Term are subject to a price increase which will be effective upon the commencement of the applicable Renewal Term, and unless otherwise agreed, shall not exceed the “Uplift Cap”. The Uplift Cap is applied to the highest annualized fee level, unit prices, and minimum annual commitment (if any) in the immediately preceding subscription term. The applicable Uplift Cap is determined as follows: (a) 1-year Renewal Term, eight percent (8%); (b) 2-year Renewal Term, nine percent (9%); or (c) 3-year Renewal Term, ten percent (10%). Notwithstanding the foregoing, any renewal that has decreased in units, volume, term, minimum annual commitment, or otherwise from its immediately preceding subscription term will result in re-pricing at renewal and the Uplift Cap will not apply.

7.6 Taxes and Duties. Customer will pay all sales, seller’s use, VAT, GST, or similar taxes (“Transaction Taxes”) due under the Agreement, except for taxes based on Locktera net income, unless Customer provides Locktera with a properly completed exemption certificate. Transaction Taxes will be separately stated on a Locktera invoice. Except as specifically identified in an Order Form, all prices are exclusive of all taxes, duties, withholdings, and other governmental assessments.

If Customer is required to pay any Transaction Taxes to taxing authorities, directly or through withholding obligations, Customer will deduct the amount of such taxes from any amounts due to Locktera hereunder and promptly pay that amount to the relevant taxing authority. Customer will provide Locktera with documentation evidencing the payment or withholding of any such taxes to the proper taxing authorities.

8. CUSTOMER RESPONSIBILITIES.

8.1   Customer agrees to keep their Account information current, accurate, and complete. The use of this information is governed by Locktera’s Privacy Policy.

8.2  User Accounts. Customer can choose what email address(es) are used to provision User Accounts.

If an organization provided you with your account (e.g., an employer or school), or if you agree to have your account managed by an organization, you understand that this organization has rights to your account and may: (a) manage your account (including suspending or canceling); (b) reset your password; (c) view your usage and profile data, including how and when your account is used; and (d) manage the Content in your account.

Each User must have their own User Account. Customer may provision User Accounts up to the number of User Licenses purchased through one or more Order Forms. A paid User License is required for each User Account. Accounts cannot be shared by multiple individuals.  

8.3  Additional User Accounts. Customer is responsible for purchasing new User Accounts. Locktera will charge Customer the applicable pro-rated amount for additional User Licenses based on the current price unless otherwise specified on the Order Form.

8.4. Customer Authentication. Customers are responsible for maintaining the confidentiality of the authentication methods they use to access the Services, including their Authentication Credentials. Customer and its Users may not share the Authentication Credentials or, without Locktera’s permission, give others access to or transfer Customer’s account or any User Account.

8.5  Privacy Protections. Customer is responsible for implementing and maintaining privacy protections and security measures for data components that Customer provides or controls. Customer is responsible for: (a) its configuration of data privacy settings as described in the Documentation; (b) its secure use of the Locktera Services, including securing its account authentication credentials; (c) protecting the security of Customer Data when in transit to and from the Locktera Share Service or Locktera; and (d) taking any appropriate steps to securely encrypt or backup any Customer Data.

8.6  Customer assumes sole responsibility for determining whether the Locktera Services are appropriate for storage, processing and sharing of any Customer Data subject to any specific law or regulation, and for results obtained from the Locktera Services.

8.7  Acceptable Use.  When using the Locktera Share Service, Customer:  (a) represents and warrants that it owns or has sufficient rights to upload Customer Data on or through the Locktera Share Service; (b) will not copy, upload, download, or share Customer Data unless it has the legal right to do so; (c) will not upload content that violates Locktera’s rights or any third party’s rights, including rights of privacy or publicity, Intellectual Property Rights, or contract rights; (d) will fully comply with any third-party licenses relating to Customer Data, including paying all royalties, fees and any other monies relating to content that is uploaded to the Locktera Share Service; (e) will not upload or submit content that (i) is defamatory, damaging, disruptive, unlawful, inappropriate, offensive, inaccurate, pornographic, vulgar, indecent, profane, hateful, racially or ethnically offensive, obscene, lewd, lascivious, filthy, threatening, violent, harassing, or otherwise objectionable; (ii) incites, encourages or threatens physical harm against another, including content that promotes racism, bigotry, sexism, religious intolerance or harm against any group or individual; or (iii) contains material that solicits personal information from anyone under 13 or exploits anyone in a sexual, violent or unlawful manner; (f) will not use the Locktera Share Service for any unlawful or unauthorized purpose including, collecting user names and/or email addresses of other users by electronic or any other means for the purpose of sending unsolicited email or other electronic communications, or engaging in unauthorized framing of, or linking to, the Locktera Share Service without prior express written consent signed by a Locktera authorized signatory; (g) will not upload or submit content that constitutes, contains, installs or attempts to install or promotes spyware, malware or other computer code, whether on Locktera’s or others’ computers or equipment, designated to enable you or others to gather information about or monitor the on-line or other activities of another party; (h) will not transmit chain letters, bulk or junk email or interfere with, disrupt, or create an undue burden on the Locktera Share Service or the networks or systems connected to the Locktera Share Service, including hacking into the Locktera Share Service, or using the Locktera Share Service to send unsolicited or commercial emails, bulletins, comments or other communications; (i) will not use the Locktera Share Service in a way that violates or infringes upon the intellectual property rights or the privacy or publicity rights of any person or entity; and (j) will not impersonate any other person or entity, provide false or misleading identification, payment or address information, or invade the privacy, or violate the personal or proprietary right, of any person or entity.

Customer agrees to promptly report any unauthorized or unacceptable use of any User Account, Content or the Locktera Share Service to Locktera Support at support@locktera.com and take all reasonable steps to cooperate with Locktera and assist in the termination of such use.

8.8  Unauthorized Use or Access. Customer will use commercially reasonable efforts to prevent unauthorized access to or use of the Locktera Services, and promptly notify Locktera of any such unauthorized use or access. Customer must notify Locktera without undue delay about any possible misuse of its accounts or authentication credentials or any security incident related to the Locktera Services. The Services are not intended for End Users under the age of 13 in the United States or 16 outside of the United States. Customer will ensure that it does not allow any person under 13 within the United States or 16 outside the United States to use the Services. Customer is responsible for any activity using its account, whether or not Customer authorized that activity.

8.9  Customer will not make any Locktera Service available to anyone other than Customer or Users, or use any Locktera Service for the benefit of anyone other than Customer. Customer will not sell, resell, sublicense, distribute, transfer, or otherwise commercially exploit its rights to use any Locktera Service to or for any third party, including as part of a managed services offering, service bureau, outsourcing offering, software as a service, cloud or other technology or service (unless such managed services are expressly authorized by a separate executed agreement between the parties). Customer will not provide access to the Locktera Services to Locktera’s direct competitors except with Locktera’s prior written consent.

8.10  Restrictions. Customer may access and use the Locktera Services only for lawful purposes.  Customer will not (and will not allow any third party to): (a) sublicense, resell, rent, lease, transfer, assign, time share, or otherwise commercially exploit or make the Services, Software, or any User Licenses available to any third party; (b) use the Locktera Services in any unlawful manner (including in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Locktera Services or its components; (c) modify, adapt, translate or hack the Locktera Services to, or otherwise attempt to, gain unauthorized access to the Locktera Services or its related systems or networks; (d) circumvent, disable or otherwise interfere with security related features of the Locktera Services or features that prevent or restrict use or copying of any Materials or enforce limitations on use of Materials; (e) use the Locktera Services to store or transmit Malicious Code; (f) attempt to gain unauthorized access to the Locktera Services or its related systems or networks, including through direct or indirect penetration testing; or (g) access or use any Locktera Services in order to (i) copy or re-use ideas, features, functions or graphics, (ii) create or distribute a product or service that competes with any Locktera Services, (iii) perform or publish benchmarks or competitive analyses, or (iv) determine whether Locktera Services are within the scope of any patent; or (f) copy, modify, reverse engineer, decompile, disassemble or otherwise attempt to derive or gain access to the object code, source code or other operational mechanisms or the underlying ideas, methodologies or algorithms of the Locktera Services.  Customer will comply with any codes of conduct, policies, or other notices Locktera provides or publishes in connection with the Locktera Services, and Customer will promptly notify Locktera if it learns of a security breach related to the Services. Customer agrees not to access the Locktera Services by any means other than through the interface that is provided by Locktera for accessing the Locktera Services, unless otherwise specifically authorized by us in a separate written agreement signed by a Locktera authorized signatory.

9. CUSTOMER DATA

9.1  Limitations. The terms of this Agreement constitute Customer’s instructions to Locktera to process Customer Data. Locktera, Locktera personnel and its Subcontractors will only process, access, use, store, and transfer Customer Data as Customer instructs in order to deliver the Services and as specified in this Agreement.

9.2  Backup and Retention. Customer is responsible for retaining and backing up Customer Data. Locktera will not be liable for any loss or corruption of Customer Data, or for any costs or expenses associated with backing up or restoring any Customer Data.  Accordingly, Customer acknowledges that it bears sole responsibility for adequate backup and retention of Customer Data, and that it is Customer’s sole responsibility to use a secure encrypted connection to communicate with the Services if it wishes to protect transmission of data or files to Locktera.  Locktera will have no liability to you for any corruption, deletion, destruction, or loss of any of Customer Data.

9.3  Aggregate/Anonymous Data. Locktera may generate data that has been de-identified, anonymized and aggregated with other de-identified, anonymized data (including from other customers) based on Customer’s use of the Services and use such data for any of the following purposes:  internal research and development; development of tools, methodologies, algorithms and processes; machine learning; risk management; fraud prevention; enhancing products, services and features; developing new products, services and features; and conducting and furthering Locktera’s business.

9.4  Compliance. Customer is responsible for retaining and storing Customer Data in compliance with applicable law.  If Customer is legally required to retain or store copies of Customer Data, Customer must do so using its own facilities.

9.5  Data Transfer. Locktera may transfer Customer Data to and access, use, and store Customer Data in locations other than Customer’s country. To the extent Customer Data includes Personal Data that is subject to the CCPA, FADP, DPA or the GDPR that Locktera is Processing on Customer’s behalf, Customer and Locktera agree to the Locktera Data Processing Addendum, which is incorporated by reference into these Terms. The terms “CCPA”, “FADP”, “DPA”, “GDPR”, “Personal Data”, and “Processing” will have the meanings defined in the Locktera Data Processing Addendum.

9.6  Data Ownership. We respect your right to ownership of content created or stored by you. You own the content created or stored by you. Unless specifically permitted by you, your use of the Services does not grant Locktera the license to use, reproduce, adapt, modify, publish or distribute the content created by you or stored in your user account for Locktera’s commercial, marketing or any similar purpose. But you grant Locktera permission to access, copy, distribute, store, transmit, reformat, publicly display and publicly perform the content of your user account solely as required for the purpose of providing the Services to you.

9.7  Hosting Location. The location of the cloud facility from which you are served depends on the mapping of your region/country to the available cloud facilities at the time of your sign-up. We may migrate your account or require you to migrate your account to a different cloud facility in the event of any updates to the region/country to cloud facility mapping at any point of time. You must not mask your internet protocol (IP) address at the time of sign-up since your region/country is determined based on your IP address. If, at any time, your actual region/country is found to be different from the region/country in our records, Locktera may take appropriate action such as migrate your account or require you to migrate your account to the cloud facility corresponding to your region/country or close your account and deny the Service to you.

10. CONFIDENTIALITY.

10.1  Definition of Confidential Information. “Confidential Information” means any and all non-public information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) pursuant to the Agreement, in any form or medium, whether oral or written, that is designated confidential or proprietary, or that a reasonable person should understand is confidential or proprietary. Confidential Information includes without limitation: the terms of the Agreement, information related to either party’s technology, products, know-how, trade secrets, whether or not patentable or copyrightable, security reports, specifications, customers, business plans, pricing information, promotional and marketing activities, finances and other business affairs, and the Locktera Services. Customer will not remove or destroy any proprietary markings or restrictive legends contained in the Locktera Services.

10.2  Nondisclosure Obligations. The Receiving Party will not use the Confidential Information of the Disclosing Party for any purpose other than as necessary to fulfill its obligations or to exercise its rights under the Agreement (the “Purpose”). The Receiving Party will not disclose Confidential Information of the Disclosing Party to any third party; provided that the Receiving Party may disclose Confidential Information to its partners, officers, directors, employees, contractors, Affiliates, agents, advisors, or representatives (“Representatives”) who need access to such Confidential Information for the Purpose and who are subject to written confidentiality obligations at least as stringent as the obligations set forth in this Section. Each party accepts responsibility for the actions of its Representatives and will protect the other party’s Confidential Information in the same manner as it protects its own valuable confidential information, but with no less than reasonable care. The Receiving Party will promptly notify the Disclosing Party upon becoming aware of a breach or threatened breach hereunder and will cooperate with any reasonable request of the Disclosing Party in enforcing its rights.

10.3  Exceptions to Confidential Information. Confidential Information does not include information which: (a) is known by the Receiving Party prior to receipt from the Disclosing Party without any obligation of confidentiality; (b) becomes known to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (c) lawfully becomes publicly known or otherwise publicly available, except through a breach of the Agreement; or (d) is independently developed by the Receiving Party without use of or access to the Disclosing Party’s Confidential Information. The Receiving Party may disclose Confidential Information pursuant to the requirements of applicable law or legal process but only after it notifies the Disclosing party (if legally permissible) to enable the Disclosing party to seek a protective order or otherwise contest required disclosure, at the Disclosing Party’s expense.

10.4  Injunctive Relief. The parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Disclosing Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.

11. DATA PRIVACY AND SECURITY.

11.1  Locktera has implemented and will follow appropriate technical and organizational measures intended to protect Personal Data against accidental, unauthorized, or unlawful access, disclosure, damage, alteration, loss, or destruction.

11.2  If Locktera becomes aware of any unlawful access to any Customer Personal Data stored on Locktera equipment or in a Locktera facility, or unauthorized access to such equipment or facilities resulting in loss, disclosure, or alteration of Customer Personal Data (each a “Security Incident”), Locktera will notify Customer of the Security Incident without undue delay (provided that such notification may be delayed as required by a law enforcement agency) and take commercially reasonable steps to comply with its obligations under applicable Data Protection Law pertaining to responding to a Security Incident. Locktera’s obligation to report or respond to a Security Incident under this Section is not an acknowledgement by Locktera of any fault or liability with respect to the Security Incident.

12. WARRANTIES.

12.1  Mutual Warranty. Each party represents, warrants and covenants that: (a) it has the full power and authority to enter into the Agreement and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; and (b) its acceptance of and performance under the Agreement will not breach any agreement with any third party or any obligation owed by it to any third party.

12.2  Limited Warranties and Remedies. The following limited warranties apply only to the extent that Customer has purchased the applicable Locktera Services:

12.2.1  Locktera Share Service. Locktera warrants that the Locktera Share Service will operate substantially in compliance with the applicable Documentation during the Term, provided that the purchased items have been used as described in the Documentation and have not been modified or added to other than by Locktera. If the Locktera Services does not perform as warranted and Customer notifies Locktera within thirty (30) days, Locktera will undertake at its sole option and as Customer’s exclusive remedy, to (a) correct the non-conformance; or (b) replace the non-conforming item, provided that if Locktera determines that it is not commercially reasonable or possible to correct or replace a material non-conformity within a reasonable time from receipt of written notice from Customer detailing the warranty claim, the affected subscription will be cancelled and Locktera will refund any unused prepaid fees for the affected subscription.

12.2.2  Professional Services. Locktera will use commercially reasonable efforts to perform the Professional Services and provide the accompanying Locktera Materials according to the specifications, if any, set forth in the relevant Order Form and SOW. If Locktera fails to do so and Customer notifies Locktera within thirty (30) days of the date the Professional Services were performed, Locktera will undertake at its sole option and as Customer’s exclusive remedy to (a) re-perform the non-conforming Professional Services; or (b) if Locktera determines that re- performance is not commercially reasonable, the affected Professional Services will be cancelled and Locktera will refund to Customer any pre-paid fees corresponding to the affected Professional Services.

12.3  WARRANTY DISCLAIMER. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE EXPRESS WARRANTIES SPECIFIED ABOVE, LOCKTERA DISCLAIMS ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, LOCKTERA DOES NOT WARRANT THAT THE LOCKTERA SERVICES OR RESULTS OF THE USE THEREOF WILL: (A) OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (C) BE UNINTERRUPTED, ERROR-FREE OR VIRUS-FREE; (D) IDENTIFY, BLOCK, OR REMEDIATE ALL SECURITY VULNERABILTIES, THREATS, OR ATTACKS; OR (E) RENDER THE CUSTOMER ENVIRONMENT INVULNERABLE TO UNAUTHORISED ACCESS AND/OR THIRD-PARTY INTERFERENCE. IN ADDITION, LOCKTERA MAKES NO WARRANTY ABOUT ANY THIRD-PARTY PRODUCTS OR CONTENT.

13. TERM AND TERMINATION.

13.1  Subscription Agreement. This Subscription Agreement may be updated from time to time by Locktera provided that no update or modification will apply to any Order Form previously executed or agreed to by the parties.

13.2  Order Form and SOW. Each Order Form or SOW begins on its effective date and continues in effect through the end date of the Term or the Service Period thereof. Except as expressly provided under the Agreement, Order Forms and SOWs may not be terminated, cancelled or reduced during the Term or Service Period, payment obligations are non-cancelable, and fees are non-refundable. Each Locktera Services and Support subscription will automatically renew for additional periods equal to the greater of the expiring subscription term or one (1) year unless either party gives the other written notice at least sixty (60) days before the expiration thereof. Notice to Locktera should be provided via email to sales@Locktera.com with a copy to: legal@Locktera.com.

13.3  Termination for Cause. Either party may terminate any Order Form or SOW incorporating this Subscription Agreement, in whole or in part, for cause: (a) on thirty (30) days’ written notice to the other party of a material breach thereof if such breach remains uncured at the expiration of such period (or immediately if the material breach is not capable of being remedied); or (b) immediately upon written notice if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or an assignment for the benefit of creditors. In addition, Locktera may terminate any Order Form or SOW incorporating this Subscription Agreement immediately on written notice in the event: (a) Customer fails to pay any amounts due thereunder, and such failure continues more than ten (10) days after written notice by Locktera; or (b) Customer or its Users infringe or misappropriate Locktera’s Intellectual Property Rights, including without limitation, use of a Locktera Offering other than as authorized under the Agreement.

13.4  Effect of Termination or Expiration.

13.4.1  Termination of one Order Form will not terminate any other Order Form or other Agreement.

13.4.2  On termination or expiration of an Order Form, Customer and Users shall immediately cease to use the applicable Locktera Services. Locktera will make any remaining Customer Data stored in connection with the SaaS subscription available to Customer in the format in which it is stored for up to thirty (30) days following the effective date of termination or expiration. After such period, unless otherwise stated or legally prohibited, Locktera will have no obligation to maintain or provide any Customer Data and may delete all Customer Data in its possession or under its control.

13.4.3  If an Order Form or SOW is terminated by Customer for cause in accordance with Section 13.3, Locktera will refund Customer any unused prepaid fees for the Locktera Offering terminated. If an Order Form or SOW is terminated by Locktera for cause in accordance with Section 13.3, Customer will immediately pay Locktera any unpaid fees and reasonably incurred expenses covering the remainder of the Term/Service Period of such terminated Locktera Offering.

14. LOCKTERA INDEMNITY.

14.1  IP Claims. Locktera, at its expense, will defend Customer and its Affiliates and their respective officers, directors and employees (the “Customer Indemnified Parties”) from and against all actions, proceedings, claims and demands by a third party (a “Third-Party Claim”) alleging that the Locktera Services received by Customer under the applicable Order Form, as of the delivery date, infringes any copyright or misappropriates any trade secret, and Locktera will pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or final award) incurred by the Customer Indemnified Parties directly from any such Third-Party Claim. Together with the mitigation obligations set forth below, this represents Locktera’s entire liability, and Customer’s sole and exclusive remedy, for infringement of any intellectual property or proprietary rights by any Locktera Offering. Notwithstanding anything to the contrary in the Agreement, the foregoing obligations will not apply with respect to a claim of infringement that arises out of (a) infringing or illegal Customer Data; (b) use of the Locktera Service in combination with any software, hardware, network, technology or system not supplied by Locktera where the alleged infringement relates to such combination; (c) any modification or alteration of the Locktera Service other than by Locktera; (d) Customer’s continued use of the Locktera Service after Locktera notifies Customer to discontinue use because of an infringement claim; (e) use of the Locktera Service other than as authorized under the Agreement or Documentation; or (f) failure to implement an update, upgrade or bug fix that Locktera has provided at no charge where such implementation may avoid infringement.

14.2  Mitigation. If any Third-Party Claim which Locktera is obligated to defend has occurred, or in Locktera’s determination, is likely to occur, Locktera may, at its option: (a) obtain for Customer the right to continue using the Locktera Service; (b) replace or modify the Locktera Service so that it avoids such claim; or (c) if such remedies are not reasonably available, terminate Customer’s license for the infringing Locktera Service and provide Customer with a refund of any unused fees Customer prepaid to Locktera for the infringing Locktera Service. If such termination materially affects Locktera’s ability to meet its remaining obligations under the relevant Order Form then Locktera may, at its option and upon written notice, terminate the Order Form, in whole or in part, and refund such other unused fees prepaid to Locktera for the terminated Locktera Service.

15. CUSTOMER INDEMNITY. Customer will, at its expense, defend Locktera, its Affiliates, licensors and their respective officers, directors and employees (the “Locktera Indemnified Parties”) from and against any and all Third-Party Claims which arise out of or relate to: (a) a claim or threat that the Customer Data infringes, misappropriates or violates any third party’s privacy or Intellectual Property Rights; (b) Customer’s breach of Section 8 (Customer’s Responsibilities); and (c) the occurrence of any of the exclusions (a) through (f) set forth above in Section 14.1 (IP Claims). Customer will pay all damages, fines, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) incurred by the Locktera Indemnified Parties from any such Third-Party Claim.

16. INDEMNIFICATION PROCEDURES. Either Party’s respective indemnification obligations (each an “Indemnifying Party”) are conditioned upon: (a) being promptly notified in writing of any Third-Party Claim; (b) having the sole and exclusive right to control the defense and settlement of the Third-Party Claim; and (c) the Locktera or Customer Indemnified Parties (as applicable the “Indemnified Party”) providing all reasonable assistance (at the Indemnifying Party’s expense and reasonable request) in the defense of such Third-Party Claim. In no event will an Indemnified Party settle any claim without the Indemnifying Party’s prior written The Indemnified Party may, at its own expense, engage separate counsel to advise it regarding a Third-Party Claim and to participate in the defense of the Third-Party Claim, subject to the Indemnifying Party’s right to control the defense and settlement.

17. LIMITATION OF LIABILITY.

17.1  EXCEPT FOR CUSTOMER’S PAYMENT OBLIGATIONS, CUSTOMER’S BREACH OF SECTION 8 (CUSTOMER RESPONSIBILITIES), OR EITHER PARTY’S INDEMNITY OBLIGATIONS, THE CUMULATIVE LIABILITY OF EACH PARTY AND ITS AFFILIATES WILL NOT EXCEED THE ANNUAL FEES PAID OR PAYABLE BY CUSTOMER FOR THE APPLICABLE LOCKTERA OFFERING AT THE TIME THE CLAIM ARISES.

17.2  EXCEPT FOR CUSTOMER’S BREACH OF SECTION 8 (CUSTOMER RESPONSIBILITIES) OR EITHER PARTY’S BREACH OF SECTION 10 (CONFIDENTIALITY), NEITHER PARTY WILL BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO BUSINESS INTERRUPTION, LOST PROFITS, LOSS OF DATA OR COST OF COVER, EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.

17.3  THE WAIVERS AND LIMITATIONS IN THIS SECTION 17 APPLY REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY ASSERTED, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY IN THE AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.

17.4  NEITHER PARTY LIMITS OR EXCLUDES ITS LIABILITY FOR: (A) DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE; (B) FRAUDULENT MISREPRESENTATION OR WILLFUL MISCONDUCT; OR (C) ANY OTHER LIABILITY TO THE EXTENT THAT SUCH LIABILITY CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW.

18. TRIAL USE. Locktera may offer free or trial use of Locktera Services (“Trial Use”) in its sole discretion, Trial Use is governed by this Subscription Agreement. Trial Use is for the sole and exclusive purpose of enabling Customer to evaluate a prospective purchase and shall not be deployed as part of Customer’s business processes. At any time, in its sole discretion, Locktera may terminate or suspend all or a portion of the Trial Use without prior notice. Certain features, technical support and other support in connection with Trial Use may not be available. If applicable, Customer is solely responsible for exporting Customer Data from the Locktera Services prior to termination or expiration of the Trial Use. All Trial Use is provided “AS IS” and no express or implied warranties shall apply. Locktera shall have no liability of any kind with respect to Trial Use unless otherwise required by applicable law, in which case Locktera’s liability shall not exceed $1,000.00.

19. CUSTOMER COMMUNICATIONS

The Locktera Services may include certain communications from Locktera, such as service announcements, administrative messages and newsletters. You understand that these communications shall be considered part of using the Services. As part of our policy to provide you total privacy, we also provide you the option of opting out from receiving newsletters from us. However, you will not be able to opt-out from receiving service announcements and administrative messages.

20. COMPLAINTS

If we receive a complaint from any person  with respect to your activities as part of use of the Locktera Services, we will forward the complaint to the primary email address of your user account. You must respond to the complainant directly within 10 days of receiving the complaint forwarded by us and copy Locktera in the communication. If you do not respond to the complainant within 10 days from the date of our email to you, we may disclose your name and contact information to the complainant for enabling the complainant to take legal action against you. You understand that your failure to respond to the forwarded complaint within the 10 days’ time limit will be construed as your consent to disclosure of your name and contact information by Locktera to the complainant.

21. INDEPENDENT CONTRACTORS. The parties are independent contractors and will represent themselves accordingly in all regards.

22. FORCE MAJEURE. Neither party will be liable for delay or default in the performance of their respective obligations, excluding payment obligations, if the delay or default is caused by conditions beyond its reasonable control, including but not limited to, acts of God, war, acts of terrorism (whether actual or threatened), riot or civil unrest, failure of electrical, Internet, co-location or telecommunications service, non- Locktera applications, denial of service or similar attacks, acts of civil or military authorities, fire, floods, weather disturbances, volcanic eruption, earthquakes, accidents, strikes or labor actions, epidemics, pandemics, quarantines, or energy crises.
23. COMPLIANCE WITH LAWS. Customer shall comply with all laws and regulations applicable to its use of the Locktera Services. Locktera shall comply with all laws and regulations applicable to its provision of the Locktera Services. Locktera is not responsible for compliance with any laws or regulations that apply to Customer or Customer’s industry that are not otherwise applicable to Locktera (e.g., Locktera does not determine whether Customer Data includes information subject to any specific law or regulation).

24. Neither party may transfer or assign the Agreement or any Order Form, in whole or in part, without the other’s prior written consent. A transfer or assignment upon a change of control, through a merger, consolidation, reorganization, operation of law or otherwise, will be deemed a transfer or assignment that requires the other party’s prior written consent. Notwithstanding the foregoing, Locktera may, without Customer’s consent assign any Agreement or any Order Form to any of its Affiliates, or to an entity who acquires all or substantially all of its business or assets, or in connection with a change in control of Locktera (through merger, consolidation, reorganization, operation of law or otherwise). Any assignment in violation of this Section will be void ab initio and of no effect. Subject to the foregoing, the Agreement is binding upon, inures to the benefit of and is enforceable by the parties and their respective successors and assigns.
25. ELECTRONIC COMMUNICATION; NOTICES. Locktera may use electronic means to communicate with Customer related to its performance of obligations under the Agreement, including but not limited to, email, notices posted in portals, online Documentation, in-product chat, and RSS subscriptions to be notified of updates. Customer consents to receive communications in an electronic form and agrees that all communications that Locktera provides to Customer electronically constitute a written communication.

Either party may give notice by written communication, sent by first class postage prepaid mail or nationally recognized overnight delivery service, to the other party’s address as specified in the Agreement. Customer may send notices to Locktera Inc at 391 Las Colinas Blvd E, Ste 130, Irving, TX 75039-6291 Attention: General Counsel, with a copy to legal@Locktera.com. Locktera may send notices to Customer at the address set forth at the top of the Order Form. If Locktera requires an email address from Customer, Customer is responsible for providing and updating its most current email address for the purpose requested. Either party may change its address for notices under this Section by giving the other party notice of the change in accordance with this Section.

23. CUSTOMER REFERENCE. Customer agrees that Locktera may reference Customer as a Locktera customer, subject to Customer’s trademark and logo usage guidelines provided by Customer, and that occasionally, after Customer review, Locktera may issue a press release and case study.

24. GOVERNING LAW. The Agreement will be governed by the laws of the State of Texas without regard to its conflicts of law principles. The parties hereby consent to the personal and exclusive jurisdiction of the federal and state courts of the State of Texas. If the entity selling the Locktera Services is an Affiliate of Locktera inc, the Agreement will be governed by the laws of the country in which such Locktera Affiliate is situated, and the parties’ consent to the exclusive jurisdiction of the courts where such Locktera Affiliate is located, or in the event of multiple offices, where the head office of such Affiliate is located. The 1980 United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to the Agreement. If any provision of the Agreement is contrary to an applicable law, such provision will be considered null and void to the extent that it is contrary to such law, but all other provisions of the Agreement will remain in effect.
25. EXPORT CONTROLS. Customer shall comply with applicable United States, EU and UN export and re- export laws, regulations and requirements (“Trade Laws”). Customer shall not export, re-export, use, or make available any software or service that may be subject to the Trade Laws, to any location, or to or on behalf of any end user, or for any end use, without first obtaining any export license, permit or other approval that may be required and providing notice of such actions to Locktera at legal@Locktera.com. Without limiting the foregoing, Customer shall not export or re-export any software, or use or make available any software or service, subject to the Agreement (a) to any Group E country listed in Supplement No. 1 to Part 740, Title 15, or the Crimea, Donetsk, or Luhansk region of Ukraine; (b) to any party of concern listed at trade.gov/consolidated-screening-list, www.trade.gov/consolidated-screening-list,or to any party owned or controlled by any such party of concern; or (c) for any end use related to the development, production or use of nuclear, chemical or biological weapons or missiles. If, at any time during the Term or Service Period, Locktera is not permitted, as a result of applicable Trade Laws, sanctions or similar government restrictions, to supply the Locktera Services to Customer or receive payment from Customer’s financial institution or payment processor, Locktera may terminate or suspend its performance under the Agreement upon written notice without penalty.
26. ANTI-CORRUPTION. Each party shall maintain its own policies and procedures relating to anti-bribery and anti-corruption to ensure compliance with applicable law and will enforce them where appropriate; and will promptly report to the other party any request or demand for any undue financial or other advantage of any kind in connection with the performance of the Agreement.
27. GOVERNMENT USE. U.S. federal government end users acknowledge and agree that: (a) Locktera Services are “commercial items” as defined in Federal Acquisition Regulation (FAR) 2.101; (b) any agreement between Locktera and Partner or its end user as Customer is a commercial-item subcontract governed by FAR 52.244-6 or 52.212-5(e) as applicable; and (c) only the mandatory flow-down clauses of FAR 52.244-6 or 52.212-5(e) apply to Locktera unless other FAR and FAR Supplement clauses are specifically identified and accepted by Locktera in writing. For all U.S. federal government Customers and end users, the terms of this standard commercial software license customarily provided to the public govern, as provided by FAR 12.212, Defense FAR Supplement (DFARS) 227.7202-1 and 227.7202-3, or other applicable laws and regulations. No other license to the Locktera Services is valid or enforceable unless (and solely to the extent) specifically agreed to in writing by Locktera. For all other government entities, license to the Locktera Services is offered only under this license; no other license to the Locktera Services is valid or enforceable unless (and solely to the extent) specifically agreed to in writing by Locktera.

28. OPEN SOURCE. “Open Source Software” means any open source, community, or other free code or libraries of any type, including, without limitation, any code which is generally made available on the Internet without charge. For any component of the Software offered under an open source license, Locktera will make the license available to Customer. Notwithstanding the foregoing license grants, the Agreement is not meant to modify the terms of any Open Source Software license applicable to the Locktera Services, and in the event of a conflict, the terms of such Open Source Software license will prevail.

29. The following provisions will survive expiration or termination of the Agreement: (a) any payment obligations of Customer hereunder; (b) Section 3.2 (Partner Section 7 (Payment), Section 8 (Customer Responsibilities), Section 10 (Confidentiality), Section 13 (Term and Termination), Section 6 (Ownership), Sections 14-16 (Indemnity), Section 17 (Limitation of Liability), Section 24 (Governing Law); and (c) any rights or obligations which are stated to, 22 (Electronic Communication; Notices), Section or by their nature will, survive. The expiration or termination of the Agreement does not affect any rights which accrued before the date of expiration or termination.
30. The Agreement sets forth the entire agreement and understanding between the parties, and supersedes any other agreements, discussions, proposals, representations or warranties, written or oral, with respect to the subject matter hereof. Any other terms stated in any PO delivered to Locktera in connection with an Order Form or invoice thereunder shall have no effect. Each party acknowledges that it has reviewed and accepted the terms of the Agreement and agrees that contractual ambiguities are not to be construed in favor of or against any party based on its role in drafting the Agreement. Performance of any obligation required by a party under the Agreement may be waived only by a written waiver signed by an authorized representative of the other party. Failure or delay by either party in exercising any right or remedy will not constitute a waiver. If any provision of the Agreement is declared invalid, the entire Agreement will not fail on its account, and that provision will be severed, with the balance of the Agreement continuing in full force and effect. The Agreement may only be amended in writing signed by both parties.