Updated June 3, 2024

The purchase or use of the products and services offered by RedShift InterNetworking, Inc., a Delaware corporation (“RedShift”) is subject to these RedShift Subscription Terms and Conditions (“Terms”). By executing a Subscription Order or accessing the RedShift Service, Customer and Customer End Users accept these Terms.

1. DEFINITIONS.

1.1. “Agreement” means these Terms, the applicable Subscription Order or other written agreement between Customer and RedShift that incorporates these Terms by reference.

1.2. “Affiliate” means, in relation to a party, any other entity which directly or indirectly Controls, is Controlled by, or is under direct or indirect common Control with that party from time to time. As used in this definition, the term “control,” including the correlative terms “controlling,” “controlled by” and “under common control with,” means possession, directly or indirectly, of the power to direct or cause the direction of management or policies (whether through ownership of securities or any partnership or other ownership interest, by contract or otherwise) of a Person.

1.3. “Communication Data” means any and all information transmitted, shared, or exchanged between Customer and any Customer End User, or between Customer End User and any third party, using the RedShift Service, with respect to any communication data transferred or handled by the RedShift Service, but excluding Security Data.

1.4. “Customer End Users” means individuals who are authorized by Customer to use the RedShift Service and for whom Customer has purchased a subscription to the RedShift Service. Customer End Users may include but are not limited to Customer’s employees, partners, contractors and agents. Each Customer End User will and is required to be associated with a single, unique email address for purposes of accessing (and being identified within) the RedShift Service.

1.5. “Documentation” means that documentation that is generally provided to Customer by RedShift with the Service, as revised by RedShift from time to time, and which may include end user manuals, operation instructions, installation guides, release notes, and on-line help files regarding the use of the Service.

1.6. “Guest Operating Systems” means instances of third-party operating systems licensed by Customer, installed in a virtual machine or cloud service and running the RedShift Service.

1.7. “Intellectual Property Rights” means all worldwide property rights including without limitation, copyrights, trademarks, service marks, trade secrets, know-how, inventions, patents, patent applications, moral rights and all other proprietary rights, whether registered or unregistered.

1.8. “Person” shall be construed broadly and shall include an individual, a partnership, a limited liability company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, any other entity or a governmental entity.

1.9. “Subscription Order” means written orders to purchase subscriptions to use the RedShift Service in the form attached hereto as Exhibit A or orders directly placed through the Website, if applicable.

1.10. “RedShift Service” or “Service” means the virtual machine or cloud-based Unified Communications Threat Management (UCTM) and related services, as updated by RedShift from time tot time at its discretion, for which Customer has obtained a subscription, whether paid, a free trial or otherwise, either directly from RedShift or through a Reseller, as more particularly described or identified in the applicable master service agreement, Order, or other document under which the subscription was obtained, including, without limitation, the following services: UCTM, Defender.

1.11. “Representative” means, with respect to a party, any client of such party or any affiliate, director, officer, manager, shareholder, co-investor, member, advisor, agent, employee, consultant, attorney, or other authorized representative of such party.

1.12. “Security Data” means any and all information provided by Customer or any Customer End User to establish secure transmissions through the use of the RedShift Service, including but not limited to personal information or any information that may be used to identify a person.

1.13. “Software” means any software that RedShift makes available for download or otherwise provides for use in connection with the RedShift Service.

1.14. “Subscription Term” means the duration of a RedShift Service license as specified in the Subscription Order or other means to subscribe to the RedShift Service including directly through the Website.

1.15. “Website” means RedShift’s website available at: https://www.redshiftnetworks.com/.

2. SUBSCRIPTION.

2.1. Subscription Fees. Customer shall pay RedShift the amount set forth in the Subscription Order (the “Subscription Fees”). Unless otherwise set forth in a Subscription Order, Subscription fees are due upfront on an annual basis within thirty (30) days from the Subscription Order date or Customer’s receipt of a related invoice, whichever is earlier. In the event a Subscription Order sets forth payment terms different than “annual” and Customer is delinquent in fulfilling its payment obligations during the corresponding Subscription Term, Customer agrees that RedShift may, without limiting any of its rights hereunder, in its sole discretion, require Customer to fulfill its payment obligations on an annual basis for any subsequent terms, unless otherwise agreed to in writing by the Parties.

2.2. Late Payments. In the event of overdue Subscription Fees, RedShift will issue an overdue payment notice, and Customer shall pay such overdue amounts, plus interest as described below, within five (5) business days. If customer fails to timely remit such overdue amounts, RedShift shall have the right to suspend Customer’s access to and use of the RedShift Services until all overdue fees and late payments are received. Overdue Subscription Fees shall accrue interest in the amount of the lower of (i) 1.0% per month or (ii) the maximum rate permitted by applicable law.

2.3. Authorized Users. Only Customer End Users may access or use the RedShift Service under Customer’s account. Each Customer End User may use any reasonable number of compatible devices for the purpose of accessing the RedShift Service, provided that RedShift reserves the right to determine whether a number of devices is reasonable and, in its sole discretion, to place a corresponding cap on the number of devices. RedShift does not allow access to the RedShift Service from anonymous browser services. Customer End User subscriptions cannot be shared or used by more than one individual but may be permanently reassigned to new Customer End Users. The number of Customer End User licenses purchased may be increased at any time (under a new Subscription Order) but cannot be decreased during any subscription period. Not more than once per year, RedShift may reasonably request Customer to certify that it is in conformance with the terms and conditions of this Agreement, including but not limited to, the number of Customer End Users that are using the RedShift Services. Customer will use commercially reasonable efforts to provide such certification to RedShift within thirty (30) days of its receipt of any such request. If Customer fails to provide such certification within the specified timeframe, or if any certification provided is found to be inaccurate, Customer shall be liable for any unpaid Subscription Fees for any unauthorized users and shall pay an additional penalty for each such unauthorized user in accordance with the interest rate set forth in Section 2.2. Furthermore, RedShift reserves the right to audit Customer’s use of the RedShift Services to ensure compliance with the terms of this Agreement. In the event that an audit reveals a discrepancy in the number of Customer End Users or devices, Customer shall be responsible for the costs of the audit in addition to any unpaid fees and penalties. RedShift may also, in its sole discretion, suspend or terminate Customer’s access to the RedShift Services without any liabilities to the Customer until such discrepancies are resolved.

3. USE OF THE REDSHIFT SERVICE.

3.1. RedShift Responsibilities. RedShift will: (i) provide to Customer support related to the RedShift Service with commercially reasonable effort and (ii) provide the RedShift Service only in accordance with applicable laws and government regulations and subject to the restrictions, terms and warranties provided herein.

3.2. Customer’s Responsibilities. Customer will (i) be responsible for meeting RedShift’s applicable minimum system requirements for use of the RedShift Service; (ii) be responsible for Customer End Users’ compliance with this Agreement and for any other activity (whether or not authorized by Customer) occurring under Customer’s account; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the RedShift Service under its account, and notify RedShift promptly of any such unauthorized access or use; (iv) be responsible for any network or internet connectivity required to access the RedShift Services; and (v) use the RedShift Service only in accordance with this Agreement, any applicable documentation, laws, and government regulations, and any reasonable written instructions provided by RedShift to Customer.

3.3. Prohibitions. Customer will not (i) make the RedShift Service available to anyone other than Customer End Users, (ii) sell, resell, rent or lease the RedShift Service, (iii) use the RedShift Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or Intellectual Property Rights, (iv) use the RedShift Service to store or transmit malware, viruses, worms, time bombs, trojan horses, and other harmful or malicious code, files, scripts, agents or programs, (v) interfere with or disrupt the integrity or performance of the RedShift Service or third-party data contained therein, or (vi) cache and transfer to any other device, computing system or repository any data, information, or materials that are part of, embedded in or provided by RedShift or any third party in connection with the RedShift Service (a “Cached Transfer”). Cached Transfer does not include reports and analytics generated by the RedShift Service for Customer or Customer End User. If a Customer or Customer End User makes any Cached Transfer not specifically authorized by RedShift, whether for the purpose of circumventing payment of license or subscription fees to RedShift or otherwise, then the offending Customer or Customer End User will pay damages to RedShift. RedShift, at its sole discretion, may block or cancel access to the RedShift Service for any users that are connected in any way to U.S. or U.N. sanctioned entities or countries. Additionally, RedShift at its sole discretion, may block or cancel access to the RedShift Service for any customer that shares login credentials or any customer that exceeds its licensed usage volume without agreeing to an increase in license fees.

3.4. Software. Customer End Users may need to download and install client Software (as made available by RedShift either directly or through applicable third-party app stores or other distribution channels) on each device through which they intend to use the RedShift Service. All use of such Software will be governed by the terms of the applicable RedShift end user license agreement that accompanies or is made available in connection with the Software. Customer acknowledges that each Customer End User must accept such license agreement and must have a RedShift Service compatible device in order to download, install, and/or use the Software. Nothing in this Agreement shall be deemed to grant to Customer rights of any kind in, to or with respect to Software.

3.5. Security Data and Privacy. Customer understands that failure to protect Security Data may allow an unauthorized Person to access the RedShift Service. In addition, Customer acknowledges that RedShift generally does not have access to and cannot retrieve lost Security Data. In the event that Customer loses Security Data, Customer will no longer have access to the RedShift Service. Customer agrees that: (i) Customer is solely responsible for collecting, inputting and updating all Security Data; (ii) RedShift assumes no responsibility for the supervision, management or control of Customer’s and Customer End User’s Security Data; and (iii) RedShift assumes no responsibility for any fraudulent or authorized use of the Software or any other portion of the RedShift Service. To the extent that RedShift has access to any personally identifiable information gathered from Customer or from Customer End Users in connection with the RedShift Service, such information shall be governed by the provisions of the RedShift Privacy Policy, a copy of which is available on the RedShift website at https://www.redshiftnetworks.com/privacy, which RedShift may update from to time. Customer and Customer End Users agree not to share sensitive personal information with RedShift.

4. PROPRIETARY RIGHTS

4.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, RedShift reserves all rights, title and interest in and to the RedShift Service and any associated Software and documentation, including all related Intellectual Property Rights. No rights are granted to Customer hereunder other than as expressly set forth herein.

4.2. Restrictions. In addition to the other prohibitions set forth in this Agreement, Customer will not (i) create derivative works based on the RedShift Service, (ii) copy, frame or mirror any part or content of the RedShift Service, other than copying or framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes in accordance with RedShift’s applicable documentation, (iii) reverse engineer, decompile, disassemble or otherwise attempt to obtain or perceive the source code from which any component of the RedShift service is compiled or interpreted, or (iv) access the RedShift Service in order to build a competitive product or service or to copy any features, functions or graphics of the RedShift Service, or (v) copy, store, possess or use in part or in whole the original data provided and made available on the RedShift Service except as explicitly allowed and provided in this Agreement and solely during the Subscription Term.

4.3. Ownership of Communication Data. Customer reserves all rights, title and interest in and to the Communication Data. Customer grants RedShift a non-exclusive, worldwide, royalty-free license to use any Communication data to provide, improve, enhance, develop and offer services and products. Customer represents and warrants that: (i) it owns or has the right to make Communication Data available to RedShift; (ii) the posting and use of Communication Data on or through the RedShift Service will not (a) violate the intellectual property, privacy, publicity, or other rights of any Person, or (b) breach any contract between Customer and a third party; and (iii) except to the extent the Communication Data is based on publicly available information.

4.4. Ownership of Metadata. RedShift owns all metadata in connection with the installation, registration, use and performance of the RedShift Services, including response times, load averages, usage statistics and activity logs.

4.5. Suggestions. Customer grants RedShift a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate in the RedShift Service any suggestions, enhancement requests, recommendations or other feedback provided by the Customer, including Customer End Users, relating to the operation or features of the RedShift Service.

4.6. Data Protection. In this Section 4.6, “Data Protection Law” means any applicable privacy and data protection laws (including, where applicable, the California Consumer Privacy Act of 2018 and the General Data Protection Regulation (EU) 2016/679 of April 27, 2016 (“GDPR”)) as may be amended from time to time. Each Party shall be individually and separately responsible for complying with the obligations that apply to it under Data Protection Law in connection with any Personal Data. To the extent RedShift has access to Personal Data, the Parties acknowledge and agree that Customer will remain the data controller of its personally identifiable information at all times. RedShift will use any personally identifiable information to which it has access strictly for purposes of performing its obligations hereunder. “Personal Data” means information that, alone or in combination with other information provided to RedShift, can be used to identify (whether directly or indirectly) an individual person.

5. CONFIDENTIALITY.

5.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party or its Representatives (“Disclosing Party”) to the other party or its Representatives (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. However, Confidential Information will not include any information that (i) is or becomes generally known to the Receiving Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

5.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its Representatives who need such access for purposes consistent with this Agreement and who are legally bound to protect such Confidential Information consistent with the requirements of this Agreement.

5.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is required or requested to be disclosed in response to a valid order by a court or in response to a request by a regulatory authority having jurisdiction over the Receiving Party and will provide 10 days advance notice and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest, limit or protect the disclosure. Receiving Party agrees only to disclose such portion of Confidential Information as is required.

5.4. Termination. Upon termination of these terms pursuant to Section 9 hereof and/or expiration of the Subscription Term, the Receiving Party shall promptly destroy all data, documents and other tangible materials (including notes, writings and other material developed therefrom by the Receiving Party or any of its Representatives but excluding email and other written records legally required to be maintained) containing Confidential Information and all copies thereof, except that the Receiving Party may retain one complete copy of all the Confidential Information in its legal and/or compliance department for archival purposes only, and the Receiving Party may retain electronic copies of the Confidential Information that exist on their computer system and backups thereof in the ordinary course. Disclosing Party may request from the Receiving Party, and the Receiving Party shall promptly provide up receipt of such request, a written certification of compliance with this Section 5.4. signed by an officer of the Customer (if applicable).

5.5. Notification of Unauthorized Disclosure. If the Receiving Party becomes aware of disclosure or use of Confidential Information other than as authorized in this Agreement, the Receiving Party will promptly notify the Disclosing Party of that disclosure or use and shall cooperate with the Disclosing Party in mitigating any adverse consequences to the Disclosing Party of that disclosure or use.

5.6. No License or Conveyance. Except as expressly permitted in these Terms, nothing in these Terms shall convey to the Receiving Party any right, title or interest in any Confidential Information, or any license to use, sell, exploit, copy or further develop any such Confidential Information or any trademark, trade name, or any other Intellectual Property Rights of the Disclosing Party.

5.7. Survival of Confidentiality. The confidentiality obligations in this Section 5 shall apply during the term of this Agreement and for a period of three (3) ears after the expiration and/or termination of this Agreement.

6. WARRANTIES AND DISCLAIMERS.

6.1. Mutual Representations and Warranties. Each party represents and warrants that it has the right to enter into and perform its obligations under this Agreement, and that such performance does not and will not conflict with any other agreement of such party or any judgement, order or decree by which it is bound. Each Party will comply with all laws applicable to its performance under this Agreement.

6.2. Disclaimer. THE REDSHIFT SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, ACCURACY, COMPLETENESS, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, REDSHIFT DOES NOT WARRANT THAT THE REDSHIFT SERVICE WILL PERFORM AS DOCUMENTED IN CASES OF HARDWARE MALFUNCTION, MISUSE OF THE SOFTWARE OR REDSHIFT SERVICE, MODIFICATION OF THE SOFTWARE BY ANY PARTY OTHER THAN BY REDSHIFT OR AS OTHERWISE AUTHORIZED, OR BUGS IN OTHER SOFTWARE , SUCH AS THE CUSTOMER END USER’S SOFTWARE OR SERVER, WITH WHICH THE SOFTWARE OR SERVICE INTERACTS, REDSHIFT DISCLAIMS ANY AND ALL LIABILITY IF ANY CUSTOMER OR CUSTOMER END USER DATA IS CORRUPTED BY OR FROM MALWARE, VIRUSES OR OTHER BUGS HOSTED AND LAUNCHED BY CUSTOMER END USER’S BROWSER AND/OR COMPUTER.

7. MUTUAL INDEMNIFICATION.

7.1. Indemnification by Customer. Customer shall defend, indemnify and hold harmless RedShift, its officers, directors and employees, from and against any liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees, arising out of or in connection with any third-party claim that: (i) a third party has suffered injury, damage or loss resulting from Customer’s or any Customer End User’s use of the RedShift Service (other than any claim for which RedShift is responsible under Section 7.2); or (ii) Customer or any Customer End User has used the RedShift Service in a manner that violates this Agreement. Customer’s obligations under this Section 7.1 are contingent upon: (a) RedShift providing Customer with prompt written notice of such claim; (b) RedShift providing reasonable cooperation to Customer, at Customer’s expense, in the defense and settlement of such claim; and (c) Customer having sole authority to defend or settle such claim.

7.2. Indemnification by RedShift. RedShift shall defend, indemnify and hold harmless any suit or action brought against Customer to the extent that it is based upon a claim that the RedShift Service, as furnished by RedShift hereunder, infringes or misappropriates the Intellectual Property Rights of any third party, and RedShift will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against Customer. RedShift’s obligations under Section 7.2 are contingent upon; (a) Customer providing RedShift with prompt written notice of such claim; (b) Customer providing reasonable cooperation to RedShift, at RedShift’s expense, in the defense and settlement of such claim; and (c) RedShift having sole authority to defend or settle such claim. In the event that RedShift’s right to provide the RedShift Service is enjoined or in RedShift’s reasonable opinion it is likely to be enjoined, RedShift may, in its sole discretion, obtain the right to continue providing the RedShift Service, replace or modify the RedShift Service so that it becomes non-infringing, or if such remedies are not reasonably available, terminate this Agreement without liability to Customer and with a refund to Customer pro rata for any prepaid Subscription Fees for the remaining term(s) of any subscription for the RedShift Service.

THE FOREGOING STATES THE ENTIRE OBLIGATION OF REDSHIFT AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE REDSHIFT SERVICE.

RedShift shall have no liability under this Section 7.2 to the extent that any third-party claims described herein are based on any combination of the RedShift Service with products, services, methods, or other elements not furnished by RedShift, or any use of the RedShift Service in a manner that violates this Agreement or the instructions given to Customer by RedShift.

8. LIMITATION OF LIABILITY.

8.1. Security and Other Risks. Customer acknowledges that, notwithstanding the security features of the RedShift Service, no product, hardware, software or service can provide a completely secure mechanism of electronic transmission or communication and that there are Persons as well as technologies, that may attempt to breach any electronic security measure. Subject only to its limited warranty obligations set forth in Section 6.1, RedShift will have no liability on account of any security breach caused by any such Persons or technologies. Customer further acknowledges that the RedShift Service is not guaranteed to operate without interruptions, failures or errors. If Customer or Customer End Users use the RedShift Service in any application or environment where failure could cause personal injury, loss of life or other substantial harm, Customer assumes any associated risks and shall indemnify RedShift and hold it harmless against those risks.

8.2. Limitation of Liability. IN NO EVENT WILL REDSHIFT’S AGGREGATE LIABILITY TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF OR IN CONJUNCTION WITH THIS AGREEMENT OR FROM THE USE OR INABILITY TO USE THE REDSHIFT SERVICE, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUN PAID BY CUSTOMER HERUNDER IN THE THREE (3) MONTH PERIOD PRECEEDING THE INCIDENT.

8.3. Exclusion of Consequential and Related Damages. NEITHER REDSHIFT NOR ANY OTHER PERSON INVOLVED IN CREATING, PRODUCING OR DELIVERING THE REDSHIFT SERVICE WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE REDSHIFT SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT REDSHIFT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

8.4. Basis of Bargain. THE LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH IN THIS SECTION 8 ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN REDSHIFT AND CUSTOMER AND WILL APPLY TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW.

9.SUBSCRIPTION TERM AND TERMINATION.

9.1. Term of Customer End User Subscriptions. Customer End User subscriptions purchased by Customer commence on the start date specified in the applicable Subscription Order and, unless terminated earlier in accordance with this Agreement, continue for the Subscription Term specified therein (subject to prorating where RedShift deems it appropriate to cause newly purchased subscriptions to expire or renew simultaneously with Customer’s pre-existing subscription(s)). Except as otherwise specified in the applicable Subscription Order, all subscriptions will automatically renew for additional periods equal to the expiring Subscription Term or one-year (whichever is shorter), unless either party gives the other at least thirty (30) days’ notice of non-renewal before the end of the relevant Subscription Term. The per-unit pricing during any such renewal term will be the same as that during the prior term unless RedShift has given Customer notice of a pricing increase at least thirty (30) days before the end of such prior term, in which case the pricing increase will be effective upon renewal and thereafter. If either party provides notice of non-renewal as set forth above, Customer’s right to use the RedShift Service will terminate at the end of the relevant Subscription Term. Prior to termination, Customer should delete and/or export any Customer specific data that may be needed. Customer will not have access to any such data once Customer’s right to use the RedShift Service terminates.

9.2. Termination or Suspension for Cause. A Party may terminate any subscription for cause upon fifteen(15) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period. In addition, RedShift may, at its sole discretion, suspend Customer’s or any Customer End User’s access to the RedShift Service, or any portion thereof, immediately: (i) if RedShift suspects that any Person other than Customer or Customer End User is accessing or using, or attempting to access or use, Security Data or (ii) if RedShift reasonably suspects that Customer or Customer End User is using the RedShift Service in a way that violates this Agreement and could expose RedShift or any other Person to harm or legal liability.

9.3. Termination for Adverse Change. In the event a change in law or regulation prohibits or impairs RedShift’s ability to provide RedShift Services, or any portion thereof, (“Adverse Change”), RedShift may suspend the provision of, and Customer’s right to access and use, the RedShift Services, or such affected portion thereof, for the duration of the Adverse Change, as may be necessary for RedShift to address the Adverse Change. If RedShift, in its sole discretion, reasonably determines that it is unable to modify the RedShift Service to address the Adverse Change, subject to Section 9.6 hereof RedShift may terminate such RedShift Service or this Agreement upon written notice to Customer with no further liability to Customer.

9.4. Termination for Additional Events. At any time, RedShift may terminate any RedShift Service or this Agreement: (i) upon ninety (90) days’ notice, if RedShift discontinues such RedShift Service in one or more of the jurisdictions in which such RedShift Service is provided under this Agreement; (ii) upon thirty (30) days’ notice, if RedShift is required by applicable law or the relevant authority to cease providing such RedShift Service in one or more of jurisdiction(s) in which such RedShift Service is provided under this Agreement; or (iii) immediately, if RedShift receives a claim or notice alleging that the RedShift Service infringes or violates a third party’s Intellectual Property Rights.

9.5. Surviving Provisions. Sections 2.1 (Subscription Fees), 2.2 (Late Payment), 4 (Property Rights), 5 (Confidentiality), 6.2 (Disclaimer), 7 (Mutual Indemnification), 8 (Limitation of Liability), 9.5 (Surviving Provisions) and 10 (General Provisions) will survive any termination or expiration of this Agreement.

9.6. Effect of Termination. Upon the expiration or termination (for any reason) of this Agreement, whether for a paid subscription, a free trial, or otherwise: (i) Customer’s right to use the RedShift Service will automatically terminate; (ii) Customer will not have any right or access to any Customer specific data that has been saved in the RedShift Service; (iii) all of Customer’s rights to any deliverables pursuant to this Agreement shall be revoked. Notwithstanding the foregoing, termination or expiration of this Agreement shall not relieve either Party of any obligation accrued through the date of termination or expiration of this Agreement. If this Agreement is terminated (x) by Customer pursuant to Section 9.2, (y) by RedShift pursuant to Sections 9.3 or 9.4, or (z) if RedShift discontinues its Services pursuant to Sections 10.10, RedShift shall refund to Customer pro rata any prepaid Subscription Fees for the remaining term(s) of any subscription for the RedShift Service.

10. General.

10.1. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder will be in writing and will be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing via the United States Postal Service; (iii) the next business day after mailing via a nationally recognized courier for overnight delivery; or (iv) sending by confirmed email if sent during the recipient’s normal business hours (or, if not, then on the next business day). Notices will be sent to the address specified by the recipient in writing when entering into this Agreement or establishing Customer’s account for the RedShift Service (or such other address as the recipient may thereafter specify by notice given in accordance with this Section 10.1).

10.2. Governing Law and Jurisdiction. This Agreement shall be governed solely by the laws of the State of California, USA without regard to such jurisdiction’s principles of conflicts of law. The application of the United Nations Convention of Contracts for the International Sale of Goods or other international laws is expressly excluded. Each party consents to the personal and exclusive jurisdiction of the courts located in San Francisco County, California, USA and the Federal Courts of San Francisco, in connection with all proceedings related to this Agreement.

10.3. Compliance with Laws. Customer acknowledges that the RedShift Services and all related technical information, documents and materials, may either now or through subsequent developments, be subject to export controls under the U.S. Export Administration Regulations and/or economic sanctions restrictions under the U.S. Treasury’s Office of Foreign Assets Control regulations that could require a license for delivery to certain entities. Customer will: (i) comply strictly with all legal requirements established under these controls; (ii) cooperate fully with RedShift in any official or unofficial audit or inspection that relates to these controls; and (iii) not export, re-export, divert or transfer, directly or indirectly, any such item or direct products thereof to any country or national thereof that is embargoed by Executive Order or other applicable law, rule or regulation, unless Customer has obtained the prior written authorization of RedShift and the applicable governmental agency.

10.4. Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or similar relationship between the Parties.

10.5. Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

10.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.

10.7. Assignment. This Agreement and any rights or obligations hereunder may not be assigned or delegated by either Party without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed, and any attempted assignment or delegation without such consent will be void; provided, however, that either Party may assign this Agreement in whole without the consent of the other to any Affiliate or to any Person which acquires all or substantially all of its assets or stock, whether by sale, merger or otherwise.

10.8. Publicity. Without the prior written consent of the other Party, neither Party shall: (i) use the name of the other Party, or the name of any of the other Party’s affiliates, or any trade name, trademark, trade device, service mark, symbol or any abbreviation, contraction or simulation of the other party or its affiliates in advertising, publicity or otherwise; or (ii) represent (directly or indirectly) that any product or any service provided by the Party has been approved or endorsed by the other.

10.9. Force Majeure. RedShift will not be liable for any delay or failure to perform under this Agreement to the extent such delay or failure results from circumstances or causes beyond the reasonable control of RedShift, including but not limited to acts of God, natural disasters, war, terrorism, civil unrest, governmental actions, labor disputes, power failures, internet or telecommunications failures, or other similar events (collectively, “Force Majeure”). In such cases, RedShift will use commercially reasonable efforts to resume performance as soon as practicable. If RedShift is unable to resume performance of the Service within thirty (30) days from the first occurrence of the Force Majeure, Customer may terminate the subscription for a pro-rata refund of any amount Customer may have pre-paid for the applicable Subscription Term.

10.10. Modification to Terms and the RedShift Service. RedShift reserves the right to modify these Terms from time to time. Any such change will become effective upon the earlier of thirty (30) calendar days following the delivery of an email notice to Customer (if applicable) or thirty (30) calendar days following RedShift’s posting of notice of the changes on RedShift’s website. Such changes will be effective immediately for new Customers. RedShift also reserves the right to modify the RedShift Service and/or these Terms at any time without prior notice. If Customer objects to any changes, Customer’s sole recourse will be to case using the RedShift Service, terminate the subscription for a pro-rata refund of any amounts Customer may have pre-paid for the applicable Subscription Term (if any), or not renew the subscription. Continued use of the RedShift Service following posting of any such changes on RedShift’s website will indicate Customer’s acknowledgement of such changes and satisfaction with the RedShift Service as so modified. RedShift also reserves the right to discontinue the RedShift Service at any time without notice. RedShift will not be liable to Customer or any third-party should RedShift exercise its right to modify or discontinue the RedShift Service, except and if otherwise expressly set forth in Section 9.6.

10.11. Third Party Beneficiary. Notwithstanding anything to the contrary in this Agreement, this Agreement is entered into, and the RedShift Services are provided, for the sole and exclusive benefit of the Parties, and are not intended to, and do not, confer any third-party beneficiary rights or remedies upon any other Person. Nothing expressed or referred to herein may be construed to give any Person other than the Parties any legal or equitable right, remedy or claim under or with respect hereto or any provision hereof.

10.12. Taxes. All fees and other charges payable by Customer to RedShift under this Agreement are stated exclusive of all federal, state, local and foreign taxes, levies and assessments. Customer agrees to bear and be responsible for the payment of all such taxes, levies and assessments imposed on Customer or RedShift arising out of this Agreement, excluding any tax based on RedShift’s net income. If Customer is required by any applicable law to deduct or withhold amounts otherwise payable to RedShift hereunder, Customer will pay the required amount to the relevant governmental authority and provide RedShift with an official receipt or certified copy or other documentation acceptable to RedShift evidencing the payment and pay to RedShift, and in addition to the payment to which RedShift is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by RedShift free and clear of all taxes equals the full amount RedShift would have received had no such deduction or withholding been required.

10.13. Inconsistent Terms. In the event of any conflict between these Terms and any Subscription Order or other order documentation incorporated to these Terms by reference, these Terms shall prevail with regard to the conflicting language unless the Parties expressly agree that such conflicting language shall supersede these Terms.