End User License Agreement

This End User License Agreement, including any supplemental terms that you might have received (collectively, the “EULA”) is between You and AssetPulse and governs Your use of AssetPulse Software.

Section 1. Delivery and Acceptance

The Software is deemed to be delivered and accepted by You on the earlier of the date it is made available for download or installation or the date that AssetPulse ships the tangible media (e.g. CD or DVD) containing the Software. You agree to be bound by the terms of this EULA from the acceptance date. If You do not have the authority to enter into this EULA or You do not agree to with its terms, do not Use the Software. Return it to the Approved Source, disable or uninstall it and request a full refund within thirty (30) days of the date of Your initial purchase. Your right to return and refund applies only if You are the original end user licensee of the Software.

Section 2. License

Subject to Your purchase of a license to the Software from an Approved Source and compliance with this EULA, AssetPulse grants You a non-exclusive and non-transferable license to use the Software and related Documentation for Your internal use in accordance with and for the term (if any) specified in any applicable Order, Entitlement and supplemental terms. If Your use of the Software exceeds Your Entitlement, You will pay for Your excess use as required. Free or open source software not owned by AssetPulse but which may be shipped and be used along with Software is subject to separate license terms made available with the Software.

If Your use of the Software requires or permits You access to a Cloud Service, such access and use is subject to AssetPulse’s SaaS Agreement.

Section 3. Beta and Trial Use

Beta versions of AssetPulse products may contain bugs, errors, or other issues. Therefore, they may not be used in Your production environment(s) unless otherwise permitted by AssetPulse in writing. If we provide You access to generally-available AssetPulse products for limited, temporary trial use, Your use is permitted for the period limited by the license key or by AssetPulse in writing. If there is no period identified, any trial use will expire thirty (30) days after the product is made available to You. If You fail to either return the product or stop using it (if it is virtual Software or a Cloud Service) by the end of the trial period, You will be invoiced for the list price of the product. Notwithstanding the foregoing, AssetPulse, in its discretion, may end the beta or trial at any time, at which point You will no longer have access to any related data, information, and files and You should immediately cease any further use. Furthermore, beta and trial products are provided “AS-IS” without support or any express or implied warranty or indemnity for any problems or issues, and AssetPulse will not have any liability relating to Your use of the AssetPulse products.

Section 4. Ownership

AssetPulse retains ownership in all intellectual property rights in and to the AssetPulse Content and Software and all underlying technology and associated Documentation related thereto. You authorize AssetPulse to use any feedback and ideas You provide in connection with Your use of the Software for any purpose.

Section 5. Limitations and Restrictions

Unless expressly authorized by AssetPulse in writing or otherwise permitted under applicable law, You will not: (i) sell, resell, transfer, sublicense, or assign Your rights under this license (except as expressly provided herein); (ii) modify, adapt or create derivative works; (iii) reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code, except as provided in Section 17 below; (iv) make the functionality available to third parties, whether as an application service provider, or on an outsourcing, membership or subscription, rental, service bureau, cloud service, managed or hosted service, or other similar basis; (v) Use Software that is licensed for a specific device, whether physical or virtual, on another device; (vi) remove, modify, or conceal any product identification, copyright, proprietary, intellectual property notices or other marks; (vii) Use the Software with equipment not authorized by AssetPulse or (viii) Use the AssetPulse Software with third-party products or service offerings that AssetPulse has not identified as compatible with the Software.

Section 6. Upgrades and Additional Copies

You may not Use Upgrades or additional copies of the Software beyond Your Entitlement unless You:

> have and comply with a valid license to the Software and have paid any fee applicable to the Upgrade or copy; and > have a valid support agreement covering Software either as part of a subscription or purchased separately) or purchase the Upgrades or copies separately, where You do not have a support agreement.

Section 7. Use by Authorized Users

You may allow Authorized Users to use the Software solely on Your behalf for Your internal operations. You are responsible for ensuring that Authorized Users comply with the terms of this EULA and You are liable for any breach of the same by such Authorized Users.

Section 8. Third Party Products

If You use the Software in conjunction with third party products, You are responsible for complying with the third-party providers’ terms and conditions and privacy policies, and all such use is at Your risk. AssetPulse does not provide support or guarantee ongoing integration support for products that are not a native part of the Software.

Section 9. Limited Warranty and Disclaimer

> Limited Warranty. AssetPulse warrants that the Software will substantially conform to the applicable Documentation for ninety (90) days following the date the Software is made available to You for Your use. This warranty does not apply if the Software, AssetPulse product or any other equipment upon which the Software is authorized to be used: (i) has been altered, except by AssetPulse or its authorized representative; (ii) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by AssetPulse; (iii) has been subjected to abnormal physical or electrical stress, abnormal environmental conditions, misuse, negligence, or accident; (iv) is licensed for beta or trial purposes or other circumstances for which the Approved Source does not receive a payment of a purchase price or license fee; or (v) has not been provided by an Approved Source. AssetPulse will use commercially reasonable efforts to deliver to You Software free from any viruses, programs, or programming devices designed to modify, delete, damage or disable the Software or Your data.

> Exclusive Remedy. Upon Your prompt written notification to the AssetPulse during the warranty period of AssetPulse’s breach of this Section 9, to the extent permitted by applicable law, Your sole and exclusive remedy is, at our option, either: (i) repair or replacement of the Software; or (ii) a refund of the license fees paid for the non-conforming Software. AssetPulse may ask You to return or destroy the Software, the AssetPulse product, and/or Documentation as a condition of the Software remedy.

> Disclaimer. Except as expressly set forth above or agreed in writing by AssetPulse, to the extent allowed by applicable law, AssetPulse expressly disclaims all warranties and conditions of any kind, express or implied including without limitation, any warranty, conditions or other implied terms regarding merchantability or fitness for a particular purpose or non-infringement.

Section 10. Limitations and Exclusions of Liability

In no event will AssetPulse be liable for the following, regardless of the theory of liability or whether relating to or arising out of this EULA, Your Order, the Software or otherwise, even if a party has been advised of the possibility of such damages: (i) indirect, incidental, exemplary, special or consequential damages; (ii) loss or corruption of data or interrupted or loss of business; or (iii) loss of revenue, profits, goodwill or anticipated sales or savings. All liability of AssetPulse, its affiliates, officers, directors, employees, agents, suppliers and licensors collectively, to You, whether based in warranty, contract, tort (including negligence), or otherwise, shall not exceed, in the aggregate, the total fees attributable to the twelve (12) month period before the initial claim and paid or payable by You to AssetPulse under the applicable Order. This limitation of liability for Software is cumulative and not per incident. Nothing in this EULA limits or excludes any liability that cannot be limited or excluded under applicable law.

Section 11. Audit

During the license term for the Software, You will take reasonable steps to maintain complete and accurate records of Your use of the Software sufficient to verify compliance with this EULA. No more than once per twelve (12) month period, You will allow AssetPulse and its auditors the right to examine such records and any applicable books, systems (including AssetPulse supplied product(s) or other equipment), and accounts, upon reasonable advanced notice, during Your normal business hours. If the audit discloses underpayment of license fees, You or Your Approved Source will pay such fees plus the reasonable cost of the audit within thirty (30) days of receipt of written notice.

Section 12. Term and Termination

> Your license begins on the date the Software is shipped or made available for download or installation and continues until terminated or until the end of the term specified in the Order or Entitlement. This is also the start date of Your subscription, if the Software is licensed on a subscription basis.

> Subscriptions will automatically renew for the renewal period selected on the Order (“Renewal Term”) unless: (i) You notify AssetPulse in writing at least thirty (30) days before the end of the then-current term of Your intention not to renew; or (ii) You or Your Approved Source elect on the Order at the time of initial purchase not to auto-renew the subscription. Your Approved Source will notify You reasonably in advance of any Renewal Term if there are fee changes. The new fees will apply for the upcoming Renewal Term unless You promptly notify AssetPulse in writing, before the applicable renewal date, that You do not accept the fee changes. In such event, the subscription will terminate at the end of the initial term.

> If a party materially breaches this EULA and does not cure that breach within thirty (30) days after receipt of written notice of the breach, the non-breaching party may terminate this EULA for cause. AssetPulse also has the right to immediately suspend or terminate Your use of the Software and/or associated Service if You breach Sections 2, 5 or 15. Upon termination of the EULA, You must cease any further use of the Software and/or associated Service, and destroy any copies of Software within Your control. Upon Your termination for AssetPulse’s material breach of the EULA, if there are any outstanding Subscriptions we will refund to You or Your Approved Source any prepaid fees covering the period from the effective date of termination to the end of the Term. Upon AssetPulse’s termination for Your material breach of the EULA, if there are any outstanding Subscriptions You will pay AssetPulse any unpaid fees covering the period from the effective date of termination to the end of the Term.

Section 13. Confidential Information and Data

> Confidential Information. Recipient will hold in confidence and use no less than reasonable care to avoid disclosure of any Confidential Information to any third party, except for its employees, affiliates and contractors who have a need to know such information in connection with this EULA, and are under written confidentiality obligations no less restrictive than the terms set forth in this Section. Recipient will be liable for any breach of this Section by its employees, affiliates and contractors. Recipient’s nondisclosure obligation will not apply to information which: (i) is known by Recipient without confidentiality obligations; (ii) is or has become public knowledge through no fault of Recipient; or (iii) is independently developed by Recipient. Recipient may disclose Discloser’s Confidential Information if required pursuant to a regulation, law or court order; provided that, Recipient provides prior notice to Discloser (to the extent legally permissible) and reasonably cooperates, at Discloser’s expense, regarding protective actions pursued by Discloser. Upon reasonable request of Discloser, Recipient will either return, delete or destroy all Confidential Information of Discloser and certify the same.

> How we Use Your Data. AssetPulse processes and uses Customer Data to deliver, analyze, support and improve the Software and as otherwise permitted in this EULA, AssetPulse’s Privacy Policy. AssetPulse will maintain appropriate administrative, physical and technical safeguards, which are designed to protect the security, confidentiality and integrity of Customer Data processed by AssetPulse. AssetPulse may share Customer Data with third party service providers consistent with AssetPulse’s Privacy Policy in order to assist in providing and improving the Software. AssetPulse contracts only with third party service providers that can provide the same level of data protection and information security that AssetPulse provides.

> Telemetry Data. AssetPulse processes Telemetry Data to deliver, enhance, improve, customize, support, and/or analyze the Software and other AssetPulse offerings and otherwise may freely use Telemetry Data that does not identify You or any of Your Authorized Users. You have the ability to configure the Software to limit the Telemetry Data collected, but in some cases, You can only opt out of the Telemetry Data collection by uninstalling or disabling the Software.

> International Data Transfers. AssetPulse may process and store Customer Data in the United States or outside of the country where it was collected. You are responsible for providing any required notices to Authorized Users and obtaining all required consents from Authorized Users regarding the processing and transfer of Data by the Software, including international transfers.

Section 14. US Government End Users

The Software and Documentation are deemed to be “commercial computer software” and “commercial computer software documentation” pursuant to FAR 12.212 and DFARS 227.7202. All U.S. Government end users acquire the Software and Documentation with only those rights set forth in this EULA. Any provisions that are inconsistent with federal procurement regulations are not enforceable against the U.S. Government.

Section 15. Export

AssetPulse Software, products, technology and services are subject to US and local export control laws and regulations. You and AssetPulse each will comply with such laws and regulations governing use, export, re-export, and transfer of Software, products and technology and will obtain all required US and local authorizations, permits or licenses.

Section 16. Export

Sections 4, 5, the warranty limitation in 9a, 9b, 9c, 10, 11, 13-16 and 18-20 shall survive termination or expiration of this EULA.

Section 17. Interoperability

If required by applicable law, AssetPulse will provide You with the interface information needed to achieve interoperability between the Software and another independently created program. AssetPulse will provide this interface information at Your written request. You will keep this information in strict confidence and strictly follow any applicable terms and conditions upon which AssetPulse makes such information available.

Section 18. Third Party Beneficiaries

This EULA does not grant any benefits to any third party unless it expressly states that it does. In particular, no person other than a party to the EULA can enforce or take the benefit of any of its terms under the Contracts (Rights of Third Parties) Act 1999.

Section 19. Governing Law

> The EULA, and any disputes arising out of or related hereto, will be governed exclusively by the applicable governing law in the State of California, United States of America.

> Arbitration and Equitable Relief. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in Santa Clara County, California in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in a court having jurisdiction thereof. Customer agrees that AssetPulse’ damages arising from any breach of this non-exclusive Agreement would be difficult, if not impossible, and inadequate to measure and calculate. Accordingly, Customer agrees that, upon a breach by Customer, particularly a breach of the requirements under Section 5 above, AssetPulse may avail itself, in addition to any other right or remedy, to an injunction, issued by the arbitrator(s), to the extent then legally possible, and/or by any court of competent jurisdiction, restraining such breach or threatened breach and specific performance of any such provision. Customer further agrees that no bond or other security shall be required in obtaining such equitable relief.

Section 20. Integration

If any portion of this EULA is found to be void or unenforceable, the remaining provisions of the EULA shall remain in full force and effect. Except as expressly stated or as expressly amended in a signed agreement, the EULA, is the complete agreement between the parties with respect to the Software and supersedes all prior or contemporaneous communications, understandings or agreements (whether written or oral) regarding this subject matter. In the event of any conflict, the order of precedence is: (i) supplemental terms; (ii) these license terms (excluding the supplemental terms); then (iii) any applicable policies referenced in this EULA. The parties agree that the English version of the EULA will govern in the event of a conflict between it and any version translated into another language.

AssetPulse, AsssetGather and the AssetPulse logo are trademarks or registered trademarks of AssetPulse in the U.S. and other countries. Third-party trademarks mentioned are the property of their respective owners.

Section 21. AssetPulse Partner Transactions

If You purchase AssetPulse Software and/or Services from a AssetPulse Partner: (i) the terms of this EULA apply to Your use of the Software and/or Services; and (ii) the terms of this EULA prevail over any inconsistent provisions in Your purchase order with the AssetPulse Partner.

Section 22. Notification

AssetPulse may provide You with notice via email and/or postings on the assetpulse.com website or any other website used with the Software. Notices to AssetPulse should be sent to AssetPulse LLC, 1340 S. De Anza Blvd. Suite #106, San Jose, CA 95129 USA unless this EULA, applicable supplemental terms or an Order specifically allows other means of notice.

Section 23. Force Majeure

Except for payment obligations, neither party will be responsible for failure of performance due to an event beyond the affected party’s reasonable control, including accidents, severe weather events, acts of God, actions of any government agency, pandemic, acts of terrorism, or the stability or availability of the Internet or portions thereof.

Section 23. Force Majeure

Except for payment obligations, neither party will be responsible for failure of performance due to an event beyond the affected party’s reasonable control, including accidents, severe weather events, acts of God, actions of any government agency, pandemic, acts of terrorism, or the stability or availability of the Internet or portions thereof.

Section 24. Definitions

“Approved Source“ means AsssetPulse or a AssetPulse authorized reseller, distributor or systems integrator.

“Authorized User(s)” means the individuals You authorize to access the Software, including Your employees or third parties that access the Software solely on Your behalf for Your internal operations.

“AssetPulse” “we,” “our” or “us” means AssetPulse, LLC. or its applicable affiliate(s).

“AssetPulse Partner” means a AssetPulse authorized reseller, distributor or systems integrator.

“Cloud Service” means the AssetPulse hosted software-as-a-service offering or other AssetPulse cloud-enabled feature described in an Offer Description. A Cloud Service may include Software.

“Confidential Information” means non-public proprietary information of the disclosing party (“Discloser”) obtained by the receiving party (“Recipient”) in connection with this EULA, which: (i) is conspicuously marked; or, (ii) is information which by its nature should reasonably be considered confidential; or (iii) if verbally disclosed, is summarized in writing to the Recipient within 14 days.

“Customer Data” means all information and data that You or an Authorized User provides or transfers to AssetPulse or that the Software collects from You, Your Authorized User(s) or Your system(s), in connection with Your use of the Software, including but not limited to data related to those Authorized Users . Customer Data does not include Telemetry Data.

“Documentation” means the AssetPulse user or technical manuals, training materials, specifications, privacy data sheets or other information applicable to the Software.

“Entitlement” means the license detail; including license metric, duration, and quantity published in the Order.

“Order” means an ordering document (including a web or other electronic form) that specifies the duration, type/product ID and quantity of On-premise Software and/or Cloud Services to be provided and the associated fees (if relevant).

“Software” means the binary image of AssetPulse computer programs (including Upgrades) which could be a downloadable file, delivered on physical media, pre-installed on the on-premise computer system, resident in ROM/Flash (system memory) or cloud-hosted, and purchased from an Approved Source. Software includes firmware.

“Telemetry Data” means all information and data that the Software generates in connection with Your use, including but not limited to, network policy, log and configuration information; threat intelligence data, URLs, metadata or net flow data; origin and nature of malware; the types of software or applications installed on a network or an endpoint; information about the devices connected to a network; information generated by sensors, devices and machinery; information related to the usage, origin of use, traffic patterns or behavior of the users of a network or Software; and information relating to the existence of cookies, web beacons, and other similar applications.

“Upgrades” means all updates, upgrades, bug fixes, error corrections, enhancements and other modifications to the Software.

“You” and “Your” means the individual or legal entity licensing the Software under this EULA.