Software License and Services Terms and Conditions

SOFTWARE LICENSE AND SERVICES TERMS AND CONDITIONS

Published January 24, 2024

THESE TERMS INCLUDE A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, AND SELECTION OF GOVERNING LAW AND CHOICE OF FORUM (INCLUDING MANDATORY ARBITRATION INSTEAD OF COURT). IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE SOFTWARE OR SERVICES. THESE TERMS ARE SUBJECT TO CHANGE FROM TIME TO TIME BY VENDOR WITH THE MOST RECENT VERSION POSTED AT e2open.com/license-terms.

These Terms govern the use of the Software and related Services of the member of the E2open Group identified on the Order Form as Vendor and the member of the Customer Group identified on the Order Form as Customer. In consideration of the mutual promises contained herein and other good and valuable consideration, the sufficiency and receipt of which are acknowledged, Vendor and Customer agree as follows:

1. Defined Terms.

“Action” means a claim, suit, action or proceeding by a third party.

“Action” means a claim, suit, action or proceeding by a third party.

“Confidential Information” means the terms of these Terms and all documents, software, reports, data, records, forms, and other materials obtained by the Receiving Party from the Disclosing Party: (a) that have been marked as confidential; (b) whose confidential nature has been made known by the Disclosing Party to the Receiving Party; or (c) that, due to their character and nature, a reasonable person under like circumstances would treat such material as confidential. The Software, Professional Services, Documentation, Vendor Materials, and pricing are Vendor’s Confidential Information. Customer Data is Customer’s Confidential Information.

“Competitor” means any person, business, or entity that makes commercially available software, or application products and services similar to those offered by Vendor.

“Customer” means the Customer identified above for the purposes of these Terms and the relevant Customer Affiliate for the purposes of Order Forms.

“Customer Affiliate” means any company directly or indirectly controlled by or under common control with Customer’s ultimate parent company, where a company is directly controlled by another company if the latter holds or controls 50% or more of the shares (or its equivalent) of the particular company.

“Customer Data” means any content, materials, data, and information that Users input or cause to be input into the Software or that Users derive from their use of and store in the Software. Customer Data and its derivatives do not include Vendor’s Confidential Information.

“Customer Group” means Customer’s ultimate parent company and any operating company owned or controlled (directly or indirectly) by Customer’s ultimate parent company, including Customer.

“Customer Indemnitees” means Customer and Customer’s officers, directors, employees, agents, permitted successors, and permitted assigns.

“Delivery Date” means the date that Vendor first furnishes access to the applicable Service and/or Software, whether electronic or otherwise.

“Disclosing Party” means a party disclosing Confidential Information to a Receiving Party under these Terms.

“Documentation” means Vendor’s user guides, training materials, and technical manuals in any medium, generally made available to Vendor’s customers, and includes all updated versions as may be provided from time to time. Documentation shall not include Vendor’s marketing materials or proposals.

“Equipment” means the appropriate computer hardware configuration or other devices, such as handheld devices, or associated peripheral equipment and terminals required to operate the Software.

“Expenses” means all actual, reasonable travel, living, and out-of-pocket expenses incurred by Vendor pursuant to these Terms.

“Feedback” means comments, suggestions, enhancement requests, or other feedback provided by Customer.

“Indemnitee” means the party seeking an indemnification.

“Indemnitor” means the party providing the indemnification.

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Losses” means any and all losses, damages, liabilities, judgments, settlements, interest, awards, penalties, fines, costs or expenses, including reasonable attorneys’ fees.

“Order Form” means each separate, written document signed by the parties under which Customer orders the Services identified therein. Order Forms will identify the Software and/or Professional Services and include quantities, duration, applicable use, fees, costs, general project plans, scope, objectives, schedules, and Service Level Agreement, as appropriate. Each Order Form becomes a part of these Terms. If for Professional Services only, an Order Form may be called a Statement of Work (SOW).

“Patches” means bug fixes, updates, maintenance, and service packs necessary for the proper function and security of the Software, as generally released pursuant to the Service Level Agreement.

“Professional Services” means the work performed by Vendor for Customer pursuant to an Order Form to install, configure, or upgrade the Software and provided in accordance with the terms and conditions outlined in these Terms.

“Receiving Party” means a party receiving Confidential Information from a Disclosing Party under these Terms.

“Results” means the information derived by Customer from the input of Customer Data into the Software.

“Services” means the Support Services and the Professional Services.

“Software” means Vendor’s (a) software products designated on an Order Form in object code only; (b) software deliverables produced by Professional Services; and (c) any updates and upgrade thereto. The definition of Software does not encompass Third Party Software.

“Statistics” means data compiled, calculated, or otherwise resulting from de-identified, aggregated, and anonymized output from the operation and use of the Services, in whole or in part. Examples of Statistics are transaction volume, number and type of partners, and revenue volume. Statistics will not include personal data.

“Substantial Contact” means a party’s interaction with the other party’s employee where such employee had material involvement with the Services during the last 18 months prior to the employee’s last day of employment with his/her respective employer.

“Support Services” means the maintenance and support services provided by Vendor for the Software in accordance with the terms and conditions set forth in these Terms and the applicable Order Form.

“Third Party Software” means third party software provided by Vendor, embedded in, or accessed through Software as part of its solution for Customer. Third Party Software providers are third party beneficiaries of these Terms.

“User” means any natural person or Vendor-approved automated system (commonly called a bot) granted access through a unique user ID, issued by Customer for access and/or use of the Software.

“Vendor” means the Vendor identified above for the purposes of these Terms and the relevant Vendor Affiliate for the purposes of Order Forms.

“Vendor Affiliate” means any company directly or indirectly controlled by or under common control with Vendor’s ultimate parent company where a company is directly controlled by another company if the latter holds or controls 50% or more of the shares (or its equivalent) of the particular company.

“Vendor Group” means E2open, LLC and any operating company owned or controlled (directly or indirectly) by E2open, LLC, including Vendor.

“Vendor Indemnitees” means Vendor and Vendor’s officers, directors, employees, agents, permitted successors, and permitted assigns.

“Vendor Materials” means any technology, equipment, information, and materials provided or developed by Vendor (independently or with Customer’s or another party’s cooperation) on its own initiative and in the course of performance under these Terms, including the delivery of any support or Professional Services to Customer including Documentation, and any derivative works thereof, which may be updated by Vendor. Vendor Materials do not include Customer’s Confidential Information.

2. Software.

2.1 Grant of Rights. Subject to the terms of these Terms:

2.1.1 Vendor hereby grants Customer a perpetual, non-exclusive, non-transferable, and worldwide license to install, access, and use the applicable Software, Services, Documentation, and Vendor Materials solely for Customer’s internal business purposes as contemplated by these Terms. Any User that is an automated system must be approved by Vendor in advance in writing (not to be unreasonably withheld);

2.1.2 Customer hereby grants Vendor a non-exclusive, worldwide right to use Customer Data, as reasonably necessary to provide the Services during the term of these Terms; and

2.1.3 Customer hereby grants Vendor a non-exclusive, irrevocable, worldwide right to incorporate the Statistics in works in any form, media, or technology for Vendor’s business purposes and to make available to others, provided that Vendor does not reveal the identity of any member of the Customer Group, Users, or Customer’s Confidential Data.

2.2 Copies. Customer may possess only the number of copies of on-premise Software necessary for the type of use specified in these Terms and one non-productive use copy for backup, testing, and archival purposes provided that all proprietary markings, titles, trademark, symbols, copyright notices, and other legends that appear on the original Software and Documentation are reproduced on such copy.

2.3 Access Management. Customer is responsible for the accuracy, quality, integrity, and legality of Customer Data, the means by which it acquired the Customer Data, and for the administration, authorization, and termination of all User access authorizations. Customer is responsible for the security of its access to the Software and the security of Users’ access authorization. Customer will not permit Users to share User IDs and passwords. Customer will promptly notify Vendor of any unauthorized use of the Software, or any other breach of security suspected or known to Customer. Customer is responsible for acquiring and maintaining the required hardware, software, internet connections, and other resources necessary for Users to access and use the Software. Customer is responsible for any and all acts and omissions of any Users to the same extent as if such action or omission were the action or omission of Customer.

2.4 Rights and Restrictions. Customer is responsible for its Users’ compliance with the terms and conditions of these Terms. Except as expressly permitted herein, Customer:

2.4.1 will not, without the prior written consent of Vendor, directly or indirectly:

2.4.2 transfer, assign, lease, loan, resell, distribute, convey, sublicense, or otherwise grant any rights in the Software, Documentation, or Vendor Materials in any form to any third party, including commercial time-sharing, rental, or service bureau use;

2.4.3 reverse engineer, decompile, disassemble, or attempt to discover the source code from any Software or Vendor Materials;

2.4.4 copy, modify, or create derivative works based on the Software, Documentation, or Vendor Materials; or

2.4.5 remove or alter any notices of Intellectual Property Rights or confidentiality or similar legends appearing in or on any aspect of any Software.

2.5 Order Process/Contracts With Affiliates. Order Forms incorporate the terms of these Terms. Customer may enter into Order Forms with Vendor or a Vendor Affiliate and allow Customer Affiliates to access and use such Services. Customer Affiliate may enter into Order Forms with Vendor or a Vendor Affiliate. Where Order Forms are to be fulfilled by a Vendor Affiliate, if the relevant Vendor Affiliate fails to accept or fulfill any Order Form, Vendor will be responsible for such Order Form. Where Order Forms are to be fulfilled by a Customer Affiliate, if the relevant Customer Affiliate fails to fulfill any Order Form or comply with these Terms, the Customer will be responsible for such Order Form.

2.6 Delivery. Unless another delivery method is specified on the Order Form, Vendor will provide Customer with access codes to the Software following execution of the Order Form. Delivery of Software will be complete and irrevocable acceptance of the Software on the Delivery Date. The Order Form will identify Customer’s contact(s) and the email address to which Vendor will send the access codes. Where physical delivery is identified, Customer will (a) obtain all licenses required to import the Software; (b) clear the Software through local customs promptly upon its arrival; and (c) pay all customs duties and other charges assessed on such importation. The Delivery Date and irrevocable acceptance for such physically delivered Software will be the date the Software is delivered to Customer. If physical delivery is specified, then all orders will be FOB shipping point. Customer will be invoiced for the freight charges in accordance with Vendor’s then-current shipping policies. Customer has made its own evaluation in deciding to license the Software, accepts the Software as delivered, and has not relied on the future availability of any specific features and/or functionality or development of any future customizations or modifications.

3. Third Party Software; Equipment.

3.1 Customer is responsible for (a) providing the Equipment and utilities to adequately support the proper operation of the Software and Services including without limitation, as applicable, modems, servers, hardware, software, network, and communication services; (b) providing the necessary backup, recovery, and reboot services for its Equipment; and (c) appointing personnel to a project team for the purpose of learning and using the Software and Services.

3.2 All Third Party Software warranties and representations of any kind, express or implied, are provided directly to Customer or passed through Vendor to Customer. Customer will observe the terms of any license or applicable end user license agreement for Third Party Software, and Vendor has no liability for Customer’s use of any Third Party Software or any violation of any end user license agreements that govern such.

4. Professional Services.

4.1 Customer Performance; Project Cooperation. Professional Services will be outlined in an Order Form. Customer will timely perform all activities and provide all items required by Customer on the Order Form, or as reasonably requested by Vendor during Vendor’s performance of the Professional Services. Customer will timely participate in planning, execution, and related activities, which may include identification of priorities, dependencies and constraints, allocation of resources, working sessions, and day-to-day engagement tasks, as requested by Vendor to enable uninterrupted implementation of the Professional Services.

4.2 Changes. Any changes to the scope of Professional Services will be identified on a change request form signed by the parties.

4.3 Expenses. Customer will reimburse Vendor for Expenses incurred in providing Professional Services.

4.4 Delay; Suspension. If the Professional Service project schedule or any portion thereof is interrupted solely due to Customer’s delay or suspension, Vendor’s performance for the Professional Services stated in the applicable Order Form is excused for such period of the delay or suspension and Vendor may re-allocate resources. Vendor may terminate the Order Form upon written notice to Customer if Customer delays or suspends the project schedule for 30 days or more, and Customer will pay Vendor for all Professional Services performed through the termination date of the Order Form within 30 days of such termination notice by Vendor.

5. Support Services.

5.1 Support. Customer may purchase Support Services consisting of (a) Patches to the Software, when and if they become available; (b) support which is available during the hours identified in the Service Level Agreement; (c) corrections of the Software to cause it to substantially conform with the Documentation. Any Patches are automatically licensed to Customer under this Agreement. Failure to maintain all Software at the same release level may result in incompatibility, for which Customer has no remedy and Vendor has no obligation. Support Services is sold as a package for all Software on the Order Form and cannot be purchased ala carte.

5.2 Limitations. Vendor is not obligated to provide Support Services for (a) Software which Customer has modified; (b) Software modified by Vendor for Customer, except as provided in a Schedule for an additional fee; (c) problems caused by software not provided by Vendor; (d) equipment malfunction; (e) issues which have been addressed in an Update that Customer has elected not to apply; or (f) problems caused by Customer Data.

5.3 Reinstatement. If Customer terminates Support Services other than for cause and later desires to reinstate Support Services, Customer must pay a reinstatement fee of 150% of the Support Services fee that would have been due during the period during which Support Services was not provided.

6. Term; Termination.

6.1 Term. These Terms apply for the duration of all Order Forms in which they are referenced. Each Order Form has its own effective date, term, and termination provisions. Unless expressly agreed to in writing, Order Forms are not cancelable for convenience. The expiration or termination of any Order Form, in whole or in part, will not modify the efficacy of any other active Order Form(s).

6.2 Termination. Either party may terminate these Terms:

6.2.1 if the other party breaches these Terms in any material respect and fails to cure the breach, if capable of cure, within 30 days after receiving notice from the other party specifying the nature of the breach; or

6.2.2 immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.

6.3 Effect of Termination. Upon termination of these Terms, all rights granted to Customer hereunder with respect to the Software, Services, and Vendor Materials will automatically terminate and Customer will immediately discontinue its use thereof. After termination, each party will destroy all Confidential Information of the other party in its possession received under these Terms and will not make or retain any copies of such Confidential Information except as required to comply with any applicable law, regulation, or reasonable internal record-keeping or information technology policies. Notwithstanding the foregoing, non-destruction of electronic copies of materials containing or reflecting Confidential Information that is automatically generated through data backup or archiving systems will not be deemed to violate these Terms, so long as the Confidential Information contained therein is not disclosed or used in violation of the other terms of these Terms. Upon termination of these Terms, the following provisions will survive: Sections 2.1.3 (Statistics), 6.3 (Effect of Termination), 9 (Confidential Information), 10 (Proprietary Rights), 11 (Indemnification), 12 (Limitation of Liability; Disclaimers), 13 (Compliance), and 15 (Miscellaneous).

7. Warranties.

7.1 Mutual Warranty. Each party represents that it has the authority to enter into these Terms and the right to disclose its Confidential Information in accordance with the terms set forth herein.

7.2 Software Warranty. Vendor warrants that the Software will substantially perform in accordance with the Documentation for a period of 90 days from the Effective Date of the applicable Order Form. As Customer’s sole remedy for a breach of this warranty, Vendor will, at its discretion, either repair or replace the portion of the Software that does not comply with this warranty, or refund the amounts paid by Customer for the nonconforming portion of the Software for the period of the nonconformance. Customer acknowledges that Vendor does not control the transfer of data over communications facilities, including the Internet, and the Software may be subject to limitations, delays, and other problems inherent in the use of such communications facilities.

7.3 Professional Services Warranty. Vendor warrants that the Professional Services will be performed with the degree of skill and care reasonably expected from a skilled and experienced global supplier of services substantially similar to the nature and complexity of the Professional Services. As Customer’s sole remedy for a breach of this warranty, Vendor will re-perform any materially nonconforming Professional Services provided Customer notifies Vendor of the nonconformity within 30 days after delivery.

7.4 Disclaimer of Warranties. Except for the express warranties set forth in this Section 7, all Software, Services, and Vendor Materials are provided “as is” and Vendor hereby disclaims all warranties, whether express, implied, statutory, or other, and Vendor specifically disclaims all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and all warranties arising from course of dealing, usage, or trade practice. Without limiting the foregoing, Vendor makes no warranty of any kind that the Services or Vendor Materials, or any products or results of the use thereof, will meet Customer’s or any other person’s requirements, operate without interruption, achieve any intended result, be compatible or work with any software, system, or other services, or be secure, accurate, complete, free of harmful code, or free of errors. All third-party materials are provided “as is” and any representation or warranty of or concerning any third-party materials is strictly between Customer and the third-party owner or distributor of the third-party materials.

8. Fees; Taxes.

8.1 Fees. Fees are payable in the currency specified on the Order Form. Customer will pay all fees identified on the Order Form. Invoices are due and payable within 30 days of the date of invoice. Customer will timely pay all undisputed amounts and raise any invoice disputes prior to the due date of an invoice, or the dispute is waived. Disputes must describe in detail the disputed amounts and the reason for the dispute.

8.2 Late Payment. Overdue payments may accrue interest at a rate of 1½% per month, or the highest rate allowed by applicable law, whichever is lower.

8.3 Suspension of Services and Acceleration. If any amount owed by Customer is 30 or more days overdue, Vendor may (a) accelerate all of Customer’s unpaid fee obligations so that all such obligations become immediately due and payable; and/or (b) suspend Services until such amounts are paid in full. Vendor will provide at least 10 days prior notice that Customer’s account is overdue before suspending Services.

8.4 Taxes. Customer is responsible and agrees to pay or reimburse Vendor for all federal, state, and local sales tax, use tax, withholdings, VAT, GST, personal property, and any other taxes and charges of any kind, including penalties and interest, imposed by any entity having authority on the transactions contemplated by these Terms, excluding only taxes on Vendor’s net income.

8.5 Customer Purchase Order Requirements. If Customer requires its internal purchase order number to be identified on an invoice, Customer will issue the purchase order to Vendor at least 10 days prior to each invoice date identified on the Order Form or, if the invoice date is the effective date of the Order Form, within 5 days of such effective date. Customer’s failure to issue a purchase order in a timely manner (a) will not impact the payment terms in Section 7.1; and (b) may result in the suspension of Services and/or termination of these Terms under Section 4.4.

9. Confidential Information.

9.1 Use of Confidential Information. The Receiving Party will protect all Confidential Information of the Disclosing Party to the same extent it protects its own Confidential Information, and not less than a reasonable standard of care. The Receiving Party will not disclose any Confidential Information of the Disclosing Party to any person other than those necessary to enable it to exercise its rights or perform its obligations under these Terms and who are under substantially similar obligations of confidentiality. If a Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it will provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the terms of these Terms conflict or are otherwise inconsistent with the terms of any non-disclosure agreement the parties entered into prior to the Effective Date, the terms of these Terms will control.

9.2 Exceptions. The Receiving Party bears no responsibility for safeguarding information that it can document in writing: (a) is in the public domain through no fault of its own; (b) was properly known to it, without restriction, prior to disclosure by Disclosing Party; (c) was properly disclosed to it, without restriction, by another person with the legal authority to do so; (d) is independently developed by Receiving Party without use or reference to Disclosing Party’s Confidential Information; or (e) is required to be disclosed pursuant to a judicial or legislative order or proceeding in which case the Receiving Party will provide Disclosing Party with prior notice of the intended disclosure. Nothing contained in these Terms preclude disclosures necessary to comply with accounting and Securities and Exchange Commission disclosure obligations and other disclosure obligations imposed by law and/or filings related to Securities and Exchange Commission registration statements or amendments under the Securities Act of 1933, as amended.

10. Proprietary Rights.

10.1 Vendor Proprietary Rights. Vendor and its licensors own all Intellectual Property Rights in and related to the Software, Services, Vendor Materials, and Statistics, and any copies thereof. Vendor Materials are not readily accessible to Competitors of Vendor and have been acquired and assembled at significant expenditure of resources. Vendor has taken and is taking all reasonable precautions to protect the secrecy of Vendor Materials through the use of reasonable security measures. Vendor retains ownership in all directories and information compiled and curated by Vendor using publicly available information that may be included within Customer Data. All rights not expressly granted to Customer are reserved to Vendor and its licensors.

10.2 Customer Proprietary Rights. Customer owns all Intellectual Property Rights in and related to the Customer Data, Results, and Customer’s Confidential Information.

10.3 Feedback. Vendor retains ownership of all right, title, and interest in and to all Feedback relating to the Services and Vendor Materials. Feedback is provided “AS-IS” and Vendor may use Feedback at its own risk. Customer has no liability arising or resulting from or in connection with Vendor’s use of Feedback, nor is Customer required to provide Feedback.

11. Indemnification.

11.1 Vendor Indemnification. Vendor will indemnify, defend, and hold harmless the Customer Indemnitees from and against any and all Losses incurred by such Customer Indemnitee arising out of any Action to the extent that such Losses result from any allegation that Customer’s use of the Software in compliance with these Terms infringes a third-party Intellectual Property Right. This obligation does not apply to any Action or Losses arising out of or relating to any:

11.1.1 access to or use of the Software or Vendor Materials in combination with any hardware, system, software, network, or other materials or service not provided or authorized in writing by Vendor;

11.1.2 modification of the Software or Vendor Materials other than: (a) by or on behalf of Vendor; or (b) with Vendor’s written approval; or

11.1.3 failure by Customer to keep any Software implemented in a single-tenant environment within 12 releases of the current release; or

11.1.4 any breach by Customer of a Third Party Software agreement.

11.2 Customer Indemnification. Customer will indemnify, defend, and hold harmless the Vendor Indemnitees from and against any and all Losses incurred by such Vendor Indemnitee in connection with any Action to the extent that such Losses arise out of or relate to any:

11.2.1 Customer Data, including any processing of Customer Data in accordance with these Terms; or

11.2.2 materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any User, including without limitation complying with any applicable terms and conditions governing any third-party materials or information.

11.3 Indemnification Procedure. Each party will promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to these Terms. The Indemnitee will cooperate with the Indemnitor at the Indemnitor’s sole cost and expense. The Indemnitor will immediately take control of the defense of the Action and will employ counsel to handle and defend the Action, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 11.3 will not relieve the Indemnitor of its obligations under Section 11 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor will have no authority to settle an Action on terms that would have a material adverse effect on the Indemnitee, without the Indemnitee’s prior written consent, which will not be unreasonably withheld or delayed.

11.4 Mitigation. If any of the Services or Vendor Materials are, or in Vendor’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any User’s use of the Software or Vendor Materials is enjoined or threatened to be enjoined, Vendor may, at its option and sole cost and expense:

11.4.1 obtain the right for Customer to continue to use the Software and Vendor Materials as contemplated by these Terms;

11.4.2 modify or replace the Software and Vendor Materials, in whole or in part, while not materially diminishing its functionality or utility; or

11.4.3 if neither (a) nor (b) is commercially practicable, Vendor will remove the relevant Software and/or Vendor Materials and provide a pro-rata refund of the license fees paid by Customer to Vendor under these Terms after an appropriate deduction for depreciation over a thirty-six month period based on Customer’s usage prior to such removal.

Section 11 sets forth Customer’s sole remedies and Vendor’s sole liability and obligation for any actual, threatened, or alleged Intellectual Property Rights Action made pursuant to these Terms.

12. Limitation of Liability; Disclaimers.

12.1 Exclusion of Damages. In no event will either party (including Vendor’s licensors) be liable under or in connection with these Terms or its subject matter under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise, for any: (a) loss of production, use, business, revenue or profit or diminution in value; (b) impairment, inability to use or loss, interruption or delay of the Services, (c) loss, damage, corruption or recovery of data, or breach of data or system security, or (d) consequential, incidental, indirect, exemplary, special, enhanced or punitive damages, regardless of whether such persons were advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable, and notwithstanding the failure of any agreed or other remedy of its essential purpose.

12.2 Limitation of Liability. Except as otherwise provided in Section 12.3, in no event will the aggregate liability of either party (including or Vendor’s licensors) under or in connection with these Terms or its subject matter, under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability and otherwise, exceed the total fees paid or payable by Customer for the specific Service giving rise to the liability, as such fees are identified on an Order Form, during the 12 month period preceding the event or action giving rise to liability (or if such claim arises during the initial 12 months of these Terms, the fees expected to be paid during such 12 month period). The foregoing limitation applies notwithstanding the failure of any agreed or other remedy of its essential purpose. The provisions of these Terms fairly allocate the risks between Customer and Vendor, and Vendor’s pricing reflects the allocation of this risk and the limitation of liability specified herein.

12.3 Exceptions. The exclusions and limitations in Section 12.2 do not apply to Vendor’s (a) unauthorized use or disclosure of Confidential Information; (b) gross negligence or willful misconduct; or (c) breach of indemnification obligations under Section 11. The exclusions and limitations in Section 12.2 do not apply to Customer’s (i) unauthorized use or disclosure of Confidential Information; (ii) gross negligence or willful misconduct; (iii) breach of indemnification obligations under Section 11; or (iv) payment obligations.

13. Compliance.

13.1 Customer Compliance. Customer will comply with all applicable laws and regulations governing the use, access, or export of the Services or any part thereof. Without limitation, the Software or any part thereof may not be used or accessed within or by, or otherwise exported to, (a) any United States embargoed country; or (b) anyone on the United States Treasury Department’s list of Specially Designated Nationals, the United States Department of Commerce’s Table of Denial Orders, or other similar lists.

13.2 Data Protection Compliance (Personal Data). Both parties will comply with the Data Protection Addendum and Standard Contractual Clauses at https://www.e2open.com/data-processing-addendum/.

13.3 Compliance with Law. Each party will fully comply with all applicable laws.

13.4 Securities Laws; Insider Trading. Each of the parties acknowledges that it is aware, and will advise each of its representatives who are informed as to the matters which are the subject of these Terms, that United States securities laws restrict persons with material non-public information about a company, obtained directly or indirectly from that company, from purchasing or selling securities of such company, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.

14. Insurance.

14.1 Policy Coverage. Vendor will, at its own expense, procure and maintain during the entire performance period of these Terms, insurance of at least the kinds and minimum amounts set forth below:

14.1.1 Workers’ Compensation: In accordance with applicable laws and having an Employers’ Liability limit of at least $1,000,000;

14.1.2 Comprehensive General Liability including Contractual Liability: $1,000,000 Combined single limit for Bodily Injury & Property Damage;

14.1.3 Automobile Liability Insurance including owned, hired, and non-owned vehicles: $1,000,000 Combined Single Limit for Bodily Injury and Property Damage;

14.1.4 Professional Errors and Omissions/Privacy/Cyber/Network Security Insurance: $5,000,000 in the aggregate with coverage to specifically provide protection against liability for the following: (a) privacy breaches and resulting liability arising from the loss or disclosure of Customer data; (b) denial or loss of service; (c) introduction, implantation, or spread or malicious code software; and (d) unauthorized access to or use of computer systems to include first-party coverage for forensic investigation, notification, and credit monitoring and third party coverage for network security errors and omissions with no exclusions for unencrypted portable devices or media or cyber events.

14.2 Certificate of Insurance. Vendor will provide a certificate of the above-required insurance upon Customer’s written request. The certificate will provide that Customer be given no less than 30 days written notice prior to any cancellation thereof.

15. Miscellaneous.

15.1 Entire Agreement. These Terms contain the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior representations and understandings, whether oral or written. These Terms may not be amended, nor any obligation waived, except by a writing signed by the authorized representatives of both parties hereto. No terms, provisions or conditions of any purchase order, acknowledgement, or other business form that Customer may use in connection with the acquisition of the Services will have any effect on the rights, duties or obligations of the parties relating to Customer’s use of the Services provided under, or otherwise modify, these Terms, regardless of any failure of Vendor to object to such terms, provisions, or conditions. The parties exclude the application to these Terms of the Uniform Computer Information Transaction Act and the United Nations Convention on Contracts for the International Sale of Goods in their entirety.

15.2 Governing Law; Dispute Resolution. These Terms are governed by, interpreted, construed, and enforced as follows: (a) if a party’s principal place of business is in the United States, in accordance with the laws of the State of Texas without regard to any choice or conflict of law provisions. The parties will resolve all disputes, claims, and causes of action arising from or relating to these Terms or the relationship of the parties including its existence, validity, and termination exclusively in arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules in effect when the claim is filed before one arbitrator selected in accordance with the named rules with a minimum ten years of experience in the high-tech industry. The arbitration will take place in Austin, Texas in the English language. The federal and state laws governing arbitration in Austin, Texas will apply to any arbitration of these Terms. The arbitration panel will decide any issues relating to these Terms to arbitrate, the scope of arbitration, and the authority of the arbitration panel. The arbitration panel has the authority to issue equitable and monetary remedies in connection with the arbitration. All information and material shared by the parties in connection with the arbitration will be Confidential Information and governed by Section 9; (b) if a party’s principal place of business is in Europe, the Middle East, or Africa, in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the Courts of England and Wales for the purpose of hearing and determining any dispute arising out of these Terms and for the purpose of enforcement of any judgment against their respective assets; (c) if a party’s principal place of business is in Asia Pacific, in accordance with the laws of Singapore, without reference to its choice of law rules and all disputes arising out of or relating to these Terms will be settled by arbitration before a single arbitrator under the commercial arbitration rules of the International Chamber of Commerce in effect at the time such claim is submitted to arbitration. The arbitrator will have experience with and knowledge of the computer software business and the language of the arbitration will be English. The arbitrator will not have any authority to make any ruling, finding, or award that does not conform to these Terms. The arbitral award will be final and binding on all parties and may be entered as a judgment and enforceable by any court of competent jurisdiction; and (d) if a party’s principal place of business is in Canada, in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, without reference to its choice of law rules and the parties irrevocably submit to the exclusive jurisdiction of the courts of the Province of Ontario and all courts competent to hear appeals therefrom for the purpose of hearing and determining any dispute arising out of these Terms and for the purpose of enforcement of any judgment against their respective assets. Regardless of forum and venue, Customer and Company hereby irrevocably waive, to the fullest extent permitted by law, all rights to trial by jury in any action, proceeding or counterclaim arising from or relating to these Terms. Each party bears its own costs and attorney and witness fees.

15.3 Assignment. Customer will not assign or sublicense, in whole or in part, any of its rights or obligations under these Terms without the prior written consent of Vendor. Notwithstanding the foregoing, Customer may assign these Terms in whole without Vendor’s consent, but with notice to Vendor within 10 days of assignment, to an entity within the Customer Group or to the surviving entity in a merger, acquisition, or similar transfer of all or substantially all of Customer’s stock or assets so long as (a) the assignee agrees in writing to be bound by the terms of these Terms; (b) any right to use the Services will be limited to the scope of the Customer’s authorized use of such immediately prior to the assignment; and (c) the assignee is not a Competitor of Vendor. Any prohibited assignment or sublicense of these Terms is void. Vendor reserves the right to revise the fees in the event of such assignment, and the parties will negotiate such revised fees in good faith. Customer will, at Vendor’s request, execute all documents and do all acts that may be required for the purpose of transferring all rights and obligations of these Terms under this provision.

15.4 Merger and Acquisition Activity. If Customer undergoes a merger or acquisition, Customer’s use of the Software may change materially. Fees do not include additional volume which results from a merger or acquisition. If Customer’s use of the Software will materially change due to an event, Vendor reserves the right to revise the fees in such event, and the parties will negotiate such revised fees in good faith.

15.5 Force Majeure. Except for the payment of monies due hereunder, neither party is liable to the other for any conditions outside of its control including, but not limited to, failure of a portion of the power grid, failure of the Internet, acts of God, strikes and other labor disputes, natural disasters such as floods, earthquakes, typhoons and epidemics, wars, government acts, terrorist acts, riots, revolutions, sabotage, or other events of a magnitude or type for which precautions are not generally taken in the industry.

15.6 No Partnership. Nothing contained in these Terms will be construed as creating any agency, partnership, or other form of joint enterprise between the parties. The relationship between the parties will be that of independent contractors. Neither party will have the authority to contract for or bind the other in any manner whatsoever. These Terms confer no rights upon either party except those expressly granted herein.

15.7 Notices. Any notice or communication required to be given hereunder must be in English and may be delivered by hand, overnight courier, or confirmed email as listed for each party herein or at such other address as may hereafter be furnished in writing by either party to the other party.

15.8 Severability; Waiver. If any provision of these Terms is found to be unenforceable, the remainder will be enforced as fully as possible, and the unenforceable provision will be deemed modified to the limited extent required to permit its enforcement in a manner most closely approximating the intention of the parties as expressed. Any failure to enforce any provision of these Terms will not constitute a waiver thereof or of any other provision.

15.9 Non-Solicitation. Each party acknowledges that the other party’s employees are critical to servicing its customers and that each party has expended substantial resources in recruiting and training its employees. Therefore, each party agrees not to solicit, employ, or otherwise engage the other party’s employees with whom there was Substantial Contact.

15.10 Counterparts; Electronic Delivery. Order Forms may be executed in counterparts. Order Forms may be executed and delivered via electronic transmission with the same force and effect as if they were executed and delivered by the parties simultaneously in the presence of one another.