Citrix TERMS OF SERVICE IMPORTANT ? READ CAREFULLY: THIS IS A LEGAL AGREEMENT (?AGREEMENT?) BETWEEN CUSTOMER AND THE CITRIX ENTITY SPECIFIED IN SECTION 9 BELOW. BY ACCESSING AND/OR USING THE SERVICES, CUSTOMER IS AGREEING, ON BEHALF OF AN INDIVIDUAL AND/OR A LEGAL ENTITY, TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, CUSTOMER SHOULD NOT ACCESS AND/OR USE THE SERVICES. If you are using the Bring Your Own Licenses option, your existing Citrix license and support agreement(s) continue to apply to your Citrix software programs in lieu of this Agreement. 1. Definitions. As used in this Agreement, the following defined terms shall apply: 1.1. Agreement means these Terms of Service and any Services Description or any other documents incorporated herein by reference. 1.2. Citrix or Company means Citrix Systems, Inc. 1.3. Confidential Information means any non-public information and/or materials provided by a party under this Agreement to the other party and reasonably understood to be confidential. 1.4. Customer means the legal entity or individual that has ordered software as a service from Citrix through AWS by submitting an Order and has the right to use the Services subject to the terms of this Agreement. 1.5. Effective Date means the date of Services activation by Amazon Web Services (AWS) for Citrix. 1.6 Infringement Claim means any claim, suit or proceeding brought against a Customer based on an allegation that the Services, as used by Customer in accordance with this Agreement, infringes upon any patent or any copyright or violates any trade secret rights of any third party. 1.7. Privacy Policy means the Privacy Policy applicable to the relevant software as a service, which may be viewed by clicking the ?Privacy Policy? link listed in the applicable Services Description. 1.8. Services means the generally available services provided by Citrix to Customers, including the Citrix software programs, support services for the Citrix software programs, and any other services provided by Citrix, as subscribed to by Customer in the applicable Order. Citrix may update the Services at any time in order to maintain the effectiveness of the Services. 1.9. Order means an order for the Services on the AWS Marketplace website. 1.10. Services Description means the specific terms and service levels for the Services selected by the Customer in the Order as further described on Exhibit 1 attached hereto, and hereby incorporated by reference. 1.11. Services Fee means the fee for Customer?s use of and access to the Services as subscribed to by Customer pursuant to Customer?s Order. 2. Customer Rights and Restrictions. 2.1. Customer Access and Use. During the Term of this Agreement, Customer may access and use the Services pursuant to and in accordance with the provisions of this Agreement. Customer/technical support for the Services is available via the support website at the link listed in the applicable Services Description. 2.2. Reverse Engineering. Except to the extent permitted by law, Customer may not modify, distribute, prepare derivative works of, reverse engineer, reverse assemble, disassemble, decompile or otherwise attempt to decipher any code provided in connection with the Services and/or any other aspect of Citrix?s technology. 2.3. Abuse. Customer shall not access and/or engage in any use of the Services (i) in a manner that abuses or materially disrupts the networks, security systems, Services and/or websites of Citrix, (ii) to communicate any message or material that is deemed false, harassing, threatening, indecent, obscene, slanderous, or otherwise unlawful, (iii) in a manner that violates privacy rights; (iv) in a manner that constitutes infringement of the intellectual property or other proprietary rights, and/or (v) that otherwise violates applicable laws, ordinances or regulations. Customer shall not use the Services for fraudulent or illegal purposes. 2.4. Resale. Customer shall not market, offer to sell, sell and/or otherwise resell the Services or any code provided in connection with the Services to any third party. 2.5. No Representation by Customer. Neither Customer nor any of its employees, representatives or authorized users of the Services under Customer?s account shall make any representations with respect to Citrix, the Services or this Agreement (including, without limitation, that Citrix is a warrantor or co-seller of any of Customer?s products and/or services). 2.6. Limited Grant of Rights. No licenses or other rights (whether by implication, estoppel or otherwise) are granted hereunder to Customer except as expressly set forth in this Agreement. 3. Term and Termination. 3.1. Term. The terms and conditions of this Agreement shall be in effect commencing on the Effective Date and continuing for the term of the relevant Order for Services, unless earlier terminated as provided herein. 3.2. Termination for Cause. At any time, either party may terminate this Agreement immediately upon written notice to the other party (i) if the other party breaches any of its material obligations under this Agreement and such breach is not cured within thirty (30) days of receipt of written notice from the non-breaching party, or (ii) if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business, or (iii) in the event of a breach by the other party of Section 4 (?Confidentiality?). In addition, Citrix may terminate this Agreement immediately upon written notice to Customer in the event Customer breaches Section 2. 3.3. Effect of Termination or Expiration. Upon termination or expiration of this Agreement, Customer will immediately discontinue all access to and use of the Services and any code provided in connection with the Services and cease to represent in any form that it is a user of the Services. Citrix will immediately disable Customer?s account upon termination or expiration. Neither party shall be liable for any damages resulting from a termination of this Agreement in accordance with this Section 3; provided, however, the termination of this Agreement shall not affect any claim arising prior to such termination. The applicable definitions, use restrictions, confidentiality terms, intellectual property rights, warranty disclaimer, limitation of liability, contracting parties, and applicable additional terms set forth in Section 10 shall survive termination or expiration of this Agreement. 4. Confidentiality. Unless expressly authorized in writing by the other party, neither party shall disclose to any third party any Confidential Information of the other party, nor use such Confidential Information in any manner other than to perform its obligations under this Agreement. The foregoing restrictions do not apply to any information that (i) is publicly disclosed through no fault of the receiving party, (ii) is already lawfully in the receiving party?s possession and not subject to a confidentiality obligation to the disclosing party, (iii) becomes known to the receiving party from a third party having an apparent bona fide right to disclose the information, or (iv) is Confidential Information that the receiving party is obligated to produce pursuant to an order of a court of competent jurisdiction or a valid administrative subpoena, provided receiving party supplies disclosing party with timely notice of such court order or subpoena. Furthermore, Customer will keep in confidence all passwords and/or other access information related to the Services. 5. Proprietary Rights. Except for the limited access and use rights granted herein, Customer has no right, title or interest in or to the Services and any code provided in connection with the Services or any intellectual property rights related thereto. Customer acknowledges that the Citrix or its licensors retain all proprietary right, title and interest in and to the Services and any such code, including, without limitation, all modifications, enhancements, derivative works, configuration, translations, upgrades and interfaces thereto. 6. WARRANTY. CITRIX WARRANTS THAT (i) ANY SERVICES PROVIDED HEREUNDER WILL BE PERFORMED IN A PROFESSIONAL AND WORKMANLIKE MANNER; (ii) THE SERVICES WILL PERFORM SUBSTANTIALLY IN ACCORDANCE WITH THE APPLICABLE SERVICES DOCUMENTATION UNDER NORMAL USE AND CIRCUMSTANCES; and, (iii) THE FUNCTIONALITY OF THE SERVICES WILL NOT BE MATERIALLY DECREASED DURING THE TERM. CITRIX?S ENTIRE LIABILITY AND CUSTOMER?S EXCLUSIVE REMEDY UNDER THIS WARRANTY WILL BE, AT THE SOLE OPTION OF CITRIX AND SUBJECT TO APPLICABLE LAW, TO PROVIDE RESTORED SERVICES WHICH CONFORM TO THESE WARRANTIES OR TO TERMINATE THE SERVICES AND THIS AGREEMENT AND PROVIDE A PRO-RATED REFUND OF ANY PREPAID SERVICES FEES (FOR THE PERIOD FROM THE DATE OF TERMINATION THROUGH TO THE END OF THE TERM). TO THE EXTENT PERMITTED BY APPLICABLE LAW, CITRIX DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. CITRIX MAKES NO WARRANTY THAT ANY OF THE SERVICES WILL MEET THE REQUIREMENTS OF CUSTOMER OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AND CONDITIONS, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMER. 7. Indemnification. 7.1. Defense or Settlement of Claims. Subject to Sections 7.2 and 7.3 below, Citrix shall indemnify and defend Customer against any Infringement Claim brought against Customer, provided Customer promptly notifies Citrix in writing of an Infringement Claim such that Citrix is not prejudiced by any delay of such notification. Citrix shall pay reasonable attorney?s fees, court costs, and damages finally awarded with respect to such Infringement Claim and the reasonable costs associated with any settlement of any Infringement Claim by Citrix. Citrix will have sole control over the defense or any settlement of any Infringement Claim and Customer will provide reasonable assistance in the defense of it. Citrix will reimburse Customer for reasonable expenses incurred in providing such assistance. Citrix shall not enter into any settlement agreement that imposes any obligation on Customer without Customer?s prior written consent. Customer may participate in the defense or settlement of an Infringement Claim with counsel of its own choice and at its own expense, however, Customer shall not enter into any settlement agreement or otherwise settle any such Infringement Claim without Citrix?s express prior written consent or request. 7.2. Infringement Cures. Following notice of an Infringement Claim, and in the event an injunction is sought or obtained against use of the Services subscribed to hereunder or in Citrix?s opinion is likely to be sought or obtained, Citrix shall, at its option and expense, either (i) procure for Customer the right to continue to use the Services as contemplated herein, or (ii) replace or modify the Services to make their use non-infringing while being capable of performing the same function without degradation of performance. In the event the options set forth in subsections (i) and (ii) herein above are not reasonably available, Citrix may in its sole discretion, upon written notice to Customer, terminate this Agreement, cancel access to the Services and refund to Customer any prepaid, but unused Services Fees related to the Services, if any. 7.3. Limitation. Citrix assumes no liability, and shall have no liability, for any Infringement Claim based on (i) Customer?s access to and/or use of the Services after notice that Customer should cease use of such Services due to an Infringement Claim; (ii) any modification of the Services by Customer or at its direction; (iii) Customer?s combination of the Services with third party services, programs, data, hardware, or other materials; or (iv) any trademark infringement involving any marking or branding not applied by Citrix. 7.4. EXCLUSIVE REMEDY. THIS SECTION 7 STATES THE CUSTOMER?S EXCLUSIVE REMEDY WITH RESPECT TO ANY INFRINGEMENT CLAIM HEREUNDER AND DOES NOT COVER OPEN SOURCE SOFTWARE. 8. LIMITATION ON LIABILITY. EXCEPT FOR (i) CITRIX?S INDEMNIFICATION OBLIGATION UNDER SECTION 7, or (ii) A BREACH BY CUSTOMER OF SECTION 2, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW: 8.1. LIABILITY CAP. THE TOTAL CUMULATIVE LIABILITY OF CITRIX, ITS AFFILIATES, THEIR RESPECTIVE LICENSORS AND AWS ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE SUM OF THE AMOUNTS PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. 8.2. EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. NEITHER CITRIX NOR AWS SHALL BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS, EXEMPLARY OR OTHER DAMAGES OR WHETHER DIRECT OR INDIRECT: (i) LOSS OF DATA OR PRIVACY, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, (iv) LOST PROFITS, (v) COSTS OF RECOVERY OR ANY OTHER DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), VIOLATION OF STATUTE, OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER. 9. Contracting Party, Choice of Law and Location for Resolving Disputes. The Citrix contracting entity under this Agreement, the applicable notice address, governing law and jurisdiction to resolve disputes (including non-contractual disputes and claims) is the following: Customer is contracting with: Citrix Systems, Inc. 851 West Cypress Creek Rd. Ft. Lauderdale, Florida 33309 Notices should be addressed to*: Citrix Systems, Inc. 851 West Cypress Creek Rd. Ft. Lauderdale, Florida With a copy to: Legal Department 851 W. Cypress Creek, Ft. Lauderdale, FL 33309, U.S.A The governing law is: Florida, without reference to conflict of laws principles and excluding the United Nations Convention on Contracts for the International Sale of Goods, and controlling United States federal law The courts having exclusive jurisdiction are: Broward County, Florida, U.S.A. *For customers from the United Kingdom, if Citrix is unable to resolve a complaint satisfactorily, Customer may be able to make a complaint through the Office of the Telecommunications Ombudsman (www.otelo.org.uk), an independent alternative dispute resolution scheme of which Citrix Online UK Limited is a registered member. In such circumstances Otelo will conduct a detailed case review and make an independent third-party decision or recommendation. *For customers from France, all requested Customer information is compulsory and necessary for processing Customer?s file. Customer is hereby informed that its personal data is subject to automatic processing by Citrix Online UK Limited for the management of Customer?s file. Customer may ask for access to and rectification of Customer?s personal data. *For customers from Germany, Customer agrees that it shall utilize the Services only for business or professional use and shall enter into a legal transaction with Citrix only in such capacity. If Customer wants to initiate out-of-court dispute resolution mechanisms according to the provisions of the Telecommunications Act and its executive regulations Customer may submit an application to the German Federal Network Agency, Bonn, Germany. 10. Additional Terms. 10.1. Relationship of the Parties. Customer and Citrix are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. 10.2. Assignment. Customer may not assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of Citrix (which consent shall not be unreasonably withheld), except that Customer may assign this Agreement in whole as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets. Any attempted assignment or delegation without such consent shall be void. This Agreement will bind and inure to the benefit of each party?s successors and permitted assigns. 10.3. Force Majeure. Neither party will be responsible for any delay, interruption or other failure to perform under this Agreement due to acts beyond its reasonable control, but only for so long as such conditions persist. Force majeure events include, but are not limited to: natural disasters (e.g., lightning, earthquakes, hurricanes, floods); wars, riots, terrorist activities, and civil commotions; activities of local exchange carriers, telephone carriers, wireless carriers, Internet service providers, and other third parties; explosions and fires; embargoes, strikes, and labor disputes; governmental decrees; and any other cause beyond the reasonable control of a party. 10.4. Notices. Any and all Services notices, requests and communications to the parties shall be in writing and will be delivered in person or by certified or registered express mail, and shall be deemed given (i) upon personal delivery; (ii) if delivered by air courier, fax or email, upon confirmation of receipt; or five (5) days after deposit in the mail. Notices shall be delivered, in the case of Citrix, to the applicable addresses specified in in Section 9 above, or, in the case of the Customer, at the address specified on the Order. 10.5. Compliance with Laws. Both parties agree to comply with all applicable local, state, national and foreign laws, rules, and regulations, including, but not limited to, all applicable export and import laws and regulations, in connection with their performance, access and/or use of the Services under this Agreement. Notwithstanding the preceding sentence, Citrix does not guarantee that the Services shall be appropriate and/or available for use in any particular location and Customer is responsible for compliance with local laws to the extent applicable. Citrix reserves the right to modify the Services for any reason, without notice and without liability to Customer or any end user, to comply with applicable law. Notwithstanding any other provision in this Agreement, Citrix shall have the right to terminate this Agreement immediately upon the determination by Citrix that Customer is not in compliance with U.S. export laws or violates any government privacy and/or data protection laws. 10.6. No Waiver. The failure of either Customer or Citrix in any one or more instance(s) to insist upon strict performance of any of the terms of this Agreement will not be construed as a waiver or relinquishment of the right to assert or rely upon any such term(s) on any future occasion(s). 10.7. Severability. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be severed from this Agreement and the other provisions shall remain in full force and effect and the parties agree to comply with the remaining terms of this Agreement in a manner consistent with the original intent of the Agreement. 10.8. No Third Party Beneficiaries. No person or entity not a party to this Agreement will be deemed to be a third party beneficiary of this Agreement or any provision hereof. 10.9. Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof and supersedes all prior and contemporaneous oral and written agreements and understandings with respect to the same. No waiver or amendment of any term or condition of this Agreement shall be valid or binding on either party unless agreed to in writing by both parties. 10.10. Captions and Headings. Captions and headings are used herein for convenience only, are not a part of this Agreement, and shall not be used in interpreting or construing this Agreement. 10.11 AWS as Sales Agent for Citrix. AWS does not have the right to make modifications to this Agreement in accepting or processing Orders. 10.12 Suspension of Services. If at any time continued provision of the Services would compromise the security of the Services due, without limitation, to hacking attempts, denial of service attacks, mail bombs or other malicious activities, Customer agrees that Citrix may temporarily suspend the Services. In any such event, Citrix will promptly inform Customer and will work to resolve the issues and re-instate the Services at the earliest opportunity. 10.13 Order of Precedence. In the event of any conflict between an Order and this Agreement, this Agreement shall control. Nothing contained in any Order or any other document submitted by Customer shall in any way add to or otherwise modify this Agreement or Citrix program terms under which the Order was submitted. EXHIBIT 1 Service Descriptions The following shall apply to any Services subscribed to by Customer under the Agreement, as set forth in the applicable Order. NetScaler and CloudBridge 1. Overview 1. The Citrix NetScaler Service is an all-in-one web application delivery controller. The Citrix CloudBridge Service is a network solution that connects enterprise datacenters to public clouds, making the cloud a secure, optimized extension of the enterprise network. 2. License. Citrix NetScaler and CloudBridge are licensed on an hourly basis under the EC2 instance type selected for each. 3. Customer Access and Use. Customer is responsible for its users? compliance with this Agreement. The Services may cease to function if there is a power or network cut or failure. These failures may be caused by reasons outside of the control of Citrix. 4. Technical Support. Customer/technical support is available via the support website at http://www.citrix.com/contact/technical-support.html. 5. Voice and Data Charges. Unless otherwise specified in an Order, Customer shall be responsible for all fees and charges imposed on Customer by Customer?s telephone carriers, wireless providers, and other voice and/or data transmission providers for voice and/or data transmission used by Customer to access and use the Services. 6. High-Risk Use. Customer hereby acknowledges that the Services are not designed or intended for access and/or use in or during high-risk activities including, but not limited to: medical procedures; on-line control of aircraft, air traffic, aircraft navigation or aircraft communications; or the design, construction, operation or maintenance of any nuclear facility. Citrix hereby expressly disclaims any express or implied warranty of fitness for such purposes.