Master Subscription Terms

The following terms, when used in this Agreement will have the following meanings:

Affiliate

means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists. For the purposes of this definition, “Control” means beneficial ownership of 50% or more of the voting power or equity in an entity.

Confidential Information

means any information disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information that (a) is in the public domain through no fault of the receiving party; (b) was properly known to the receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to the receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.

Customer Materials

means any data, content or materials that Customer (including its Users) submits to the Tensormesh Products or provides in connection with Professional Services.

Documentation

means Tensormesh’s then-current standard usage documentation for the applicable Tensormesh Product.

Professional Services

means training, migration, consulting and other professional services for Tensormesh Products or other software as set forth in a statement of work that references this Agreement and is mutually executed by the parties (“SOW”).

Professional Services Deliverable

means any code or other deliverables furnished by or on behalf of Tensormesh to Customer as a result of Professional Services provided for any Tensormesh Product.

Tensormesh Partner

means a third-party reseller, distributor, marketplace or other partner authorized by Tensormesh to promote, distribute, offer for sale, sell, and/or resell the Tensormesh Products.

Tensormesh Products

means software that is provided by Tensormesh to Customer for installation and use on Customer’s premises or private cloud as set forth in the applicable Order Form.

Third Party Platform

means any product, add-on or platform not provided by Tensormesh that Customer elects to use with a Tensormesh Product.

User

means anyone that Customer allows to use its accounts for the Tensormesh Products, consisting of (a) Customer’s employees and contractors (solely for purposes of providing services to Customer) and (b) others if permitted in the Documentation or an Order Form.

Tensormesh Products. Subject to this Agreement, Tensormesh will make the Tensormesh Products available to Customer pursuant to this Agreement and the applicable Order Form during the applicable subscription term, and hereby grants Customer a non-exclusive right to install and use the Tensormesh Products for its internal business purposes during the applicable subscription term. Customer may permit Users to use the Tensormesh Products on its behalf. Customer is responsible for provisioning and managing its User accounts, its Users’ actions through the Tensormesh Products and their compliance with this Agreement.

Customer Responsibilities.

Performance and Professional Services Deliverables. Tensormesh will perform Professional Services as described in the applicable SOW. Customer will give Tensormesh timely access to Customer Materials reasonably needed for Professional Services, and Tensormesh will use the Customer Materials only for purposes of providing Professional Services. Subject to this Agreement, Tensormesh hereby grants Customer a non-exclusive, non-sublicensable right and license to use Professional Services Deliverables only in connection with Customer’s authorized use of the Tensormesh Products or other Tensormesh software, as applicable.

No-Charge Products/Services. Tensormesh may offer certain Tensormesh Products or Professional Services at no charge, including free accounts, trial or pilot use and pre-release, alpha or beta versions or features (collectively, “No-Charge Products/Services”). Customer’s use of No-Charge Products/Services is subject to any additional terms that Tensormesh may specify. Except as otherwise set forth in this Section, this Agreement applies to No-Charge Products/Services. Tensormesh may modify or terminate Customer’s right to use No-Charge Products/Services at any time. NOTWITHSTANDING ANYTHING TO THE CONTRARY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TENSORMESH DISCLAIMS ALL OBLIGATIONS, WARRANTIES AND LIABILITIES WITH RESPECT TO NO-CHARGE PRODUCTS/SERVICES.

FOSS Software. Certain “free” or “open source” based software (“FOSS Software”) may be shipped with the Tensormesh Products but is not considered part of the Tensormesh Products hereunder. Customer’s right to use the FOSS Software is governed by the applicable open source license, and not this Agreement.

Affiliates. Any Affiliate of Customer will have the right to enter into an Order Form and this Agreement will apply to each such Order Form. With respect to any such Order Form, such Affiliate becomes a party to this Agreement and references to Customer in this Agreement are deemed to be references to such Affiliate. Each Order Form is a separate obligation of the Customer entity that enters into such Order Form, and no other Customer entity has any liability or obligation under such Order Form.

Fees. To the extent the Tensormesh Products or any portion thereof is made available for any fee, Customer may be required to select a payment plan and provide information regarding Customer’s credit card or other payment instrument. Customer represents and warrants to Tensormesh that such information is true and that Customer is authorized to use the payment instrument. Customer will promptly update Customer’s account information with Tensormesh or the Payment Processor (as defined below), as applicable, in connection with any changes (for example, a change in Customer’s billing address or credit card expiration date) that may occur. Customer agrees to pay the amount that is specified in the payment plan and/or in any Order Form in accordance with the terms of such plan and this Agreement. If Customer’s payment plan includes an ongoing subscription that is automatically renewed periodically, Customer hereby authorizes Tensormesh (through the Payment Processor) to bill Customer’s payment instrument in advance on such periodic basis in accordance with the terms of the applicable payment plan until Customer terminates Customer’s account, and Customer further agrees to pay any charges so incurred. Tensormesh reserves the right to change Tensormesh’s prices. If Tensormesh does change prices, Tensormesh will provide notice of the change through the user interface, a pop-up notice, email, or through other reasonable means, at Tensormesh’s option, at least thirty (30) days before the change is to take effect. Customer’s continued use of the Tensormesh Products after the price change becomes effective constitutes Customer’s agreement to pay the changed amount, provided that with respect to any paid subscription to the Tensormesh Products under an Order Form, any price changes will become effective upon the date of the next renewal of such Order Form. Tensormesh may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Tensormesh thirty (30) days after the date of the invoice. If Customer disputes any charges or an invoice in good faith, Customer must let Tensormesh know within thirty (30) days after the date that Tensormesh charges Customer or the date of the applicable invoice, or within such longer period of time as may be required under applicable law. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection.

Payment Processing. Notwithstanding any amounts owed to Tensormesh hereunder, TENSORMESH DOES NOT PROCESS PAYMENT FOR THE TENSORMESH PRODUCTS. To facilitate payment for the use of the Tensormesh Products, Tensormesh uses Stripe, Inc. and its affiliates (“Stripe”) and/or other third-party payment processors (collectively with Stripe, the “Payment Processors”). These payment processing services are provided by the Payment Processors and are subject to terms and conditions and other policies available at: https://stripe.com/legal and Stripe’s Global Privacy Policy available at: https://stripe.com/privacy (collectively, the “Stripe Agreements”) or the applicable Payment Processor’s terms and conditions, privacy policy, and all other relevant agreements (collectively with the Stripe Agreements, the “Payment Processor Agreements”). By agreeing to this Agreement, if Customer uses the payment functions of the Tensormesh Products, Customer also agrees to be bound by the applicable Payment Processor Agreements for the payment function Customer is using, as the same may be modified by the applicable Payment Processor from time to time. Customer hereby authorizes the applicable Payment Processor to store and continue billing Customer’s specified payment method even after such payment method has expired, to avoid interruptions in payment for Customer’s use of the Tensormesh Products. Please contact the applicable Payment Processor for more information. Tensormesh assumes no liability or responsibility for any payments Customer makes through the Tensormesh Products.

Late Payment; Suspension. Tensormesh may suspend use of the Tensormesh Products or any Professional Services immediately upon notice if Customer fails to pay any amounts hereunder at least five (5) days past the applicable due date.

Taxes. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively, “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Tensormesh. Customer will not withhold any Taxes from any amounts due to Tensormesh.

Usage Reporting; Audit. Customer will maintain complete and accurate records reasonably necessary to verify its usage of the Tensormesh Product and compliance with this Agreement. Customer will, on a semi-annual basis and/or upon Tensormesh’s reasonable request, submit a self-reported account of Customer’s usage for the applicable period (“Usage Report”). Customer will provide Usage Reports in the format specified by Tensormesh. Customer represents and warrants that all Usage Reports submitted to Tensormesh will accurately reflect Customer’s usage for the applicable period. During the term of this Agreement and for two (2) years thereafter, upon reasonable prior written notice, and no more than once in any twelve (12)-month period unless Tensormesh reasonably suspects a breach of this Agreement, Tensormesh will have the right to audit Customer’s relevant records to verify accuracy of any Usage Reports and ensure Customer’s compliance with this Agreement (including the applicable Order Form). Each party will pay the costs that it incurs in the course of the audit. If the audit reveals an underpayment, or a failure by Customer to fully comply with all the payment terms and conditions of this Agreement or applicable Order Form, then Customer will immediately pay Tensormesh the underpaid amount, with interest accruing at the rate of 1% per month, or the highest rate permitted by law, whichever is lower, from the date such amount is due until the date such amount is finally paid in full. In addition, if any audit reveals an underpayment of more than five percent (5%) for any reporting period or any failure by Customer to comply with this Agreement (including the applicable Order Form), then, without limiting Tensormesh’s other rights and remedies at law or in equity, Customer will also reimburse Tensormesh for its reasonable costs incurred in conducting such audit.

Purchase through a Tensormesh Partner. Pursuant to a separate agreement between Customer and an authorized Tensormesh Partner (including the applicable ordering document between Customer and such Tensormesh Partner, the “Partner Agreement”), Customer may procure from such Tensormesh Partner the Tensormesh Products and/or Professional Services to be delivered by Tensormesh. In such event, this Agreement specifies the terms and conditions under which the Tensormesh Products and/or Professional Services will be provided by Tensormesh, apart from price, payment and other terms specified in such separate Partner Agreement. Notwithstanding anything to the contrary in this Agreement, if Customer acquires a subscription to the Tensormesh Products or obtains any Professional Services through a Tensormesh Partner, then: (a) Customer shall pay the Tensormesh Partner all applicable fees in accordance with the Partner Agreement; (b) the Partner Agreement is between Customer and the Tensormesh Partner and is not binding on Tensormesh, and any disputes related to the Partner Agreement shall be handled directly between Customer and the Tensormesh Partner; and (c) any claims for refunds hereunder, shall be submitted by Customer to the Tensormesh Partner. Customer acknowledges if a Tensormesh Partner notifies Tensormesh of its right to terminate or suspend access or use of the Tensormesh Products or provision of any Professional Services, Tensormesh may terminate or suspend such access or use the Tensormesh Products or provision of Professional Services. Tensormesh will not be liable to Customer or any third party for any liabilities, claims, or expenses arising from or relating to any applicable Partner Agreement. In the event of any conflict between this Agreement and a Partner Agreement, this Agreement shall govern as between Tensormesh and Customer.

Proprietary Rights. As between the parties, Tensormesh exclusively owns all right, title and interest in and to the Tensormesh Products, Professional Services Deliverables, System Data and Tensormesh’s Confidential Information, and Customer exclusively owns all right, title and interest in and to the Customer Materials and Customer’s Confidential Information. “System Data” means data (including telemetry data) collected by Tensormesh regarding any Tensormesh Products or other Tensormesh software that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the Tensormesh Products.

Feedback. Customer may from time to time provide Tensormesh suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to any Tensormesh Product, other Tensormesh software or Professional Service. Tensormesh will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Tensormesh will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services. All Feedback is provided “AS IS” and Tensormesh will not publicly identify Customer as the source of Feedback without Customer’s permission.

Confidentiality. Each receiving party agrees that it will use the Confidential Information of the disclosing party solely in accordance with the provisions of this Agreement and it will not disclose the same to any third party without the disclosing party’s prior written consent, except as otherwise permitted hereunder. However, the receiving party may disclose such Confidential Information (a) to its employees and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers.

Technology Restrictions. Customer will not directly or indirectly: (a) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying any Tensormesh Product or Professional Services Deliverable; (b) attempt to probe, scan or test the vulnerability of any Tensormesh Product or Professional Services Deliverable, breach the security or authentication measures of any Tensormesh Product or Professional Services Deliverable without proper authorization or willfully render any part of the Tensormesh Products unusable; (c) use or access any Tensormesh Product or Professional Services Deliverable to develop a product or service that is competitive with Tensormesh’s products or services or engage in competitive analysis or benchmarking; (d) remove, alter or obscure any proprietary notices in any Tensormesh Product or Professional Services Deliverable; (e) transfer, distribute, share, resell, lease, license, or assign any Tensormesh Product or Professional Services Deliverable or otherwise offer or provide to any third party any Tensormesh Product or Professional Services Deliverable, use the Tensormesh Products in an application service provider or managed service provider environment, or copy the Tensormesh Products onto any public or distributed network, except for an internal and secure cloud environment; or (f) otherwise use any Tensormesh Product or Professional Services Deliverable in violation of applicable law (including any export law) or outside the scope expressly permitted hereunder and in the applicable Order Form. Any license keys provided by Tensormesh to Customer are personal to Customer and are the Confidential Information of Tensormesh, and Customer will not distribute any license keys to any third party. The restrictions in this Section 5.2 are referenced herein as the “Technology Restrictions”.

Injunctive Relief. In the event of actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.

Mutual. Each party warrants that it has the legal power and authority to enter into this Agreement.

Customer. Customer warrants that it has all rights necessary to provide any information, data or other materials that it provides hereunder, and to permit Tensormesh to use the same as contemplated hereunder.

DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. TENSORMESH IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD PARTY PLATFORMS.

Term. The term of this Agreement will commence on the Effective Date and continue until terminated as set forth below. The initial term of each Order Form will begin on the start date indicated in such Order Form and will continue for the term set forth therein. Except as set forth in such Order Form, for any Order Form that includes one or more subscriptions to any Tensormesh Product, the term of such Order Form with respect to such subscription(s) will automatically renew for successive renewal terms equal to the length of the initial term of such Order Form, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.

Termination. Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms then in effect. Each party may also terminate this Agreement or the applicable Order Form upon written notice (a) in the event the other party commits any material breach of this Agreement or the applicable Order Form and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party becomes the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.

Survival. Upon expiration or termination of this Agreement, all rights and obligations will immediately terminate, except that any terms or conditions that by their nature should survive such expiration or termination will survive, including the terms and conditions relating to payment, proprietary rights and confidentiality, Technology Restrictions, disclaimers, indemnification, limitations of liability and termination and the general provisions below. Upon expiration or termination of an Order Form, Customer will destroy any copies of the Tensormesh Products provided under such Order Form. Upon expiration or termination of this Agreement, each party will return or destroy, at the other party’s option, any Confidential Information of such party in the other party’s possession or control.

Publicity. Customer agrees that Tensormesh may refer to Customer’s name and trademarks in Tensormesh’s marketing materials and website; however, Tensormesh will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email).

Assignment; Delegation. Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.

Amendment; Waiver. Except as set forth in these Terms, no amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.

Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.

Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.

Governing Law. This Agreement will be governed by the laws of the State of Delaware, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to the parties must be sent to the respective address set forth in the signature blocks below, or such other address designated pursuant to this Section.

Entire Agreement; Electronic Agreement. This Agreement comprises the entire agreement between Customer and Tensormesh with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Tensormesh, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement. Customer acknowledges that this Agreement is a contract between Customer and Tensormesh, even though this Agreement is electronic and is not physically signed by Customer and Tensormesh, and this Agreement governs Customer’s use of the Tensormesh Products.

Force Majeure. Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations (excluding payment obligations) due to causes beyond its reasonable control (“Force Majeure”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.

Government Terms. Tensormesh provides the Tensormesh Product, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If Customer is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Tensormesh Product, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights other than those provided in this Agreement are conferred. The Tensormesh Product was developed fully at private expense.

Interpretation. For purposes hereof, “including” means “including without limitation”.