Racemi, Inc. TERMS AND CONDITIONS Last Updated: 6/1/16 BY ACCEPTING THESE TERMS, YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO BIND THE INDIVIDUAL OR ENTITY REQUESTING ACCESS TO AND USE OF THE RACEMI MATERIALS VIA AWS MARKETPLACE (ALSO REFERRED TO AS "YOU" OR "CUSTOMER"). THE EFFECTIVE DATE OF THIS AGREEMENT IS THE EARLIER OF THE DATE OF ACCEPTANCE OR THE DATE UPON WHICH YOU FIRST DOWNLOAD, INSTALL, ACCESS OR USE THE RACEMI MATERIALS. These Terms and Conditions ("Agreement") constitute a legally binding agreement between You and Racemi, Inc. ("Racemi"). By checking on the button entitled "I accept" or by otherwise downloading, accessing or using the Racemi Materials, You agree to be bound by this Agreement. BY INDICATING YOUR ACCEPTANCE, YOU INDICATE THAT YOU HAVE READ, UNDERSTAND AND ACCEPT THESE TERMS AND CONDITIONS. PLEASE RETAIN A COPY OF THIS AGREEMENT FOR YOUR RECORDS. 1. Definitions. The following capitalized terms shall have the meaning ascribed to them below: "AWS Marketplace" means the sales channel through which You access and purchase usage rights to the Racemi Software that runs on the AWS cloud. "Documentation" means the published user manuals, instructions and information, technical or otherwise, for the Racemi Software, made generally available by Racemi, as may be amended from time to time by Racemi, but does not include marketing materials, proposals and demonstrations. "End User" means any person or entity that obtains services from Customer using Customer's servers or data centers. "Image" or "Workload" means a computer file based structure containing server operating systems, application software, data and associated network storage configurations. "Migration" means the migration of an Image to a target physical or virtual computing platform. By way of example and not by way of limitation, if the migration includes the capture of a single Image that is deployed to twenty (20) server instances, Customer is charged for twenty (20) Migrations. "Racemi Materials" means, collectively, the Racemi Software and Documentation. "Racemi Property" means the Racemi Software and any improvements or enhancements thereto, and any work of authorship, work product, know-how, invention, device, process, method, development, design technique, whether patentable or not, including, without limitation, any work flows or best practices developed, invented, created or reduced to practice by Racemi. "Racemi Software" means the proprietary software of Racemi (in object code version) and any Updates, but excludes any Images, open source software and Third Party Materials. "Successful Migration" of an Image means: (i) successful transfer and installation of captured Image from storage to the physical or virtual computing platform or server; (ii) successful boot of the deployed Image on the provisioned server; and (iii) successful login as a local administrator to the provisioned server and the ability to run commands. A migration will be considered a "successful migration" even through the existing applications and/or services on the deployed server image may not function as expected by the user on the new server instance, virtual instance, data center and/or virtual environment. "Third Party Materials" means any software products, tools or other materials owned by or licensed from a third party. "Update" means a release made generally available to customers of the Racemi Software through the AWS Marketplace (i) for a temporary fix, error correction, work-around, or other maintenance media for the Racemi Software or (ii) to add new functionality to the Racemi Software. 2. Racemi Materials 2.1 Grant of Rights. Subject to compliance with this Agreement, Customer receives the limited, revocable, non-exclusive, non-transferable right to use the Racemi Software (including installation of the DynaCenter Provisioning Agent Daemon (DPAD) ("Agent") on the target server) as made available on the AWS cloud solely to perform authorized Migrations in accordance with the Documentation. Customer receives no right or license to the source code for the Racemi Software, and Racemi reserves all rights not granted specifically in this Agreement. Upon completion of the applicable Migrations, Customer shall discontinue operation and use of the Racemi Software and shall uninstall the Agent from the target server and any Third Party Materials. In the event Customer enables a service provider or independent contractor to use the Racemi Software, Customer remains solely and fully responsible for compliance by such service provider or contractor with this Agreement and for all liabilities incurred through use of the Racemi Software and any Third Party Materials. 2.2 Restrictions on Use. Customer shall not, and shall not permit any affiliate entity or third party to: (i) modify, disassemble, decompile, reverse engineer, attempt to discover source code, or otherwise create any derivative work of any part of the Racemi Materials or any Third Party Materials; (ii) use the Racemi Materials or any Third Party Materials for any purpose other than to perform authorized Migrations; (iii) rent, lease, loan, sell, license, sublicense, distribute, assign or otherwise transfer to a third party the Racemi Materials or any Third Party Materials, or any copy thereof, in whole or in part, without Racemi's prior written consent; (iv) electronically transmit the Racemi Materials or Third Party Materials over a network except as necessary for permitted use by Customer of the Racemi Materials or Third Party Materials; or (v) use run-time versions of third-party products embedded in the Racemi Software, if any, for any use other than the permitted use of the Racemi Software. Customer shall not circumvent or render inoperative any such protection procedures provided with the Racemi Software. Customer shall not use the Racemi Materials to the development or design of a computer software program that is intended to provide substantially similar functionality as the Racemi Software. 3. Fees 3.1 Fees. Customer shall pay the usage fees per Successful Migration as listed on the Racemi Software product landing page within the AWS Marketplace. The usage fees are calculated based on the Migration activity and usage reports generated through the AWS Marketplace and will be billed in accordance with the AWS Marketplace terms and conditions. Except as provided in this Agreement for eligible participants of the AWS No Cost Migration program, all USAGE FEES are non-refundable. In the event of a dispute regarding a Successful Migration, Customer's sole and exclusive remedy is to cancel this Agreement and discontinue use of the Racemi Materials. 3.2 Changes to Fees. Racemi reserves the right to modify the applicable usage fees under Section 3.1 at any time. Such modifications will become effective in accordance with the AWS Marketplace terms and conditions. If You do not agree to the modification of the fees, You should discontinue any further use of the Racemi Software. If You elect not to discontinue further use, the modified fees will be automatically applied to Your usage of the Racemi Software in accordance with the AWS Marketplace terms and conditions. 3.3 Taxes. The fees do not include applicable taxes. Customer is liable for, and shall pay, any and all sales, use, excise, value added, customs fees, or other similar taxes, federal, state or otherwise, imposed or levied by any governmental entity by reason of the transactions, software, or services contemplated under this Agreement, excluding only taxes based on Racemi's income. 3.4 Service Provider Charges. Customer acknowledges that Racemi is not responsible for charges incurred by Customer or any End User for cloud service provider services, including, but not limited to, fees associated with cloud server instances or storage fees for Images or Workloads. Customer acknowledges Customer's responsibility for the termination, deletion, or removal of cloud server instances that have been instantiated by Racemi, successfully or otherwise. Additionally, Customer acknowledges responsibility for the removal of captured Images and Workloads stored in the cloud. Customer acknowledges that Racemi is not liable for cloud provider fees incurred due to user error, including but not limited to, incorrect entry of numbers, incorrect selection of UI settings, failure to terminate cloud server instances or Workloads, failure to remove Images or Workloads from storage, and/or incorrect selection of cloud services. 3.5 AWS No Cost Migration Program. If You are a qualifying customer enrolled with AWS in the AWS No Cost Migration program, Successful Migrations that remain active in AWS for the requisite minimum time period and that otherwise meet the requisite program criteria may be subject to a refund, as determined by AWS. Any refund of the usage fee is not provided by Racemi, and is at the discretion of AWS upon verification of the applicable program criteria after completion of the requisite minimum time period. 4. Usage Period and Termination 4.1 Usage. The Racemi Software is provided on a fee for usage basis. The term for usage of the Racemi Materials through the AWS Marketplace will be on a monthly basis commencing on the date Customer receives access to use of the Racemi Materials and will automatically renew each month, unless terminated or cancelled by either party as provided in this Agreement (the "Usage Period"). 4.2 Cancellation. Customer may cancel this Agreement for access to and use of the Racemi Materials by written notice of cancellation at any time in accordance with the terms and conditions provided on AWS Marketplace. Racemi reserves the right to suspend or cancel a Customer's access to or use of the Racemi Materials at any time, in Racemi's sole discretion, if Customer is in violation of the Agreement. Racemi may discontinue the offering of the Racemi Materials through AWS Marketplace at any time without cause. 4.3 Effect of Cancellation. The rights and obligations of Racemi and Customer in Sections 3 (for unpaid amounts), 4.3, 7 through 12 (inclusive) shall survive termination or cancellation of this Agreement. Upon cancellation, all rights of Customer in and to the Racemi Materials and all support services (is any requested by Customer) shall discontinue, and Customer shall pay all fees (or other amounts due) that have accrued. 5. Customer Obligations. 5.1 Image Library. Customer is solely responsible for ensuring that the capture, transfer and deployment of each Image: (i) complies with all applicable data protection and privacy protection requirements regarding data included in the Image; (ii) is authorized and permitted under the applicable law of the territory in which the Racemi Software is used; and (iii) does not violate, infringe upon or misappropriate the intellectual property rights or other personal or proprietary rights of any person or entity or violate the terms of any agreement of the Customer with any third party. Racemi is not responsible and shall have no liability for compliance by Customer with applicable laws, including, without limitation, data security or regulatory compliance regarding any Images captured and/or provisioned by use of the Racemi Software. 5.2 Security. Customer acknowledges and agrees that as between Racemi and Customer, Customer is solely responsible for the physical, logical and technical security, back-up, archival and recovery procedures and safeguards for the Customer and/or End User servers, software, applications, data, connectivity and equipment operated, maintained or provided by Customer and/or the End User and the Images and associated data contained therein, including, without limitation, on which the Racemi Software may be installed and operated. Customer shall ensure that it or the applicable End User has implemented back-up and recovery procedures adequate to prevent loss or destruction of data or any portion of the Images and to prevent any business interruption or business loss of Customer or any End User due to or in connection with the performance of (or any malfunction of) the Racemi Software. Racemi has and shall have no liability to Customer or any third party, including, without limitation, any End User, for any breach of security or any loss or destruction of any data or any portion of the Images or for any business interruption or business loss, regardless of the cause. 5.3 Protection of Racemi Materials. Customer shall take appropriate steps and precautions to protect the Racemi Materials and to prevent any use, reproduction, distribution, disclosure, possession or other activity involving any part of the Racemi Materials that is not expressly authorized under this Agreement by Racemi. 5.4 Compliance with Laws. Customer shall comply with all applicable laws, rules and regulations in connection with its use of the Racemi Materials pursuant to this Agreement. 6. Updates and Support. Provided Customer is and remains current in the payment of fees, Customer may access Updates to the Racemi Materials as available through the AWS Marketplace. Customer has the option to request Racemi standard end user support for the Racemi Software at the time of subscription through the AWS Marketplace by providing Racemi with applicable contact information. Provided Customer is and remains current in the payment of fees and has validly applied for support with Racemi, Racemi will provide Customer with Racemi standard end user support. This Section will not be interpreted to require Racemi to develop Updates or to customize Updates to satisfy Customer's particular requirements. Customer acknowledges and agrees that Racemi has the right, in its sole discretion, to sunset or discontinue the Racemi Software (or certain program features) from time to time. Notice of a sunset or discontinued program feature or end of life for Racemi Software is provided in the release notes for the Racemi Software. 7. Disclaimer of Warranty; Limitation of Liability 7.1 THE RACEMI MATERIALS, THIRD PARTY MATERIALS AND ANY SERVICES ARE PROVIDED "AS IS," "WITH ALL FAULTS" AND IN THEIR PRESENT STATE AND CONDITION. RACEMI MAKES NO WARRANTIES OR REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AS TO THE CONDITION, QUALITY, AVAILABILITY, DURABILITY, PERFORMANCE, TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE OF THE RACEMI MATERIALS, THIRD PARTY MATERIALS OR PROVISION OF ANY SERVICES, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. NO ADVICE GIVEN BY AWS, RACEMI, ANY RESELLER OR AN AUTHORIZED RACEMI REPRESENTATIVE CONCERNING THE RACEMI MATERIALS, ANY THIRD PARTY MATERIALS OR ANY SERVICES SHALL CREATE A WARRANTY. WITHOUT LIMITING THE FOREGOING, RACEMI DOES NOT WARRANT THAT THE RACEMI MATERIALS OR ANY THIRD PARTY MATERIALS ARE ERROR-FREE OR THAT ANY ERRORS WILL BE CORRECTED OR WILL PERFORM IN ACCORDANCE WITH CUSTOMER'S EXPECTATIONS. Racemi shall have no liability or responsibility to obtain any applicable rights, licenses, authorizations or permissions to copy, provision, transmit, or store any images of any servers, operating systems, content, data, software applications, system configurations, or related materials contained in any Images that are captured or deployed pursuant to this Agreement. RACEMI DOES NOT TEST ALL SERVERS OR OPERATING SYSTEMS/PLATFORMS WITHIN A SERVER FAMILY AND DOES NOT GUARANTEE SUPPORT FOR ALL MODELS AND/OR CONFIGURATIONS OF SERVER FAMILIES OR OPERATING ENVIRONMENTS. ACCORDING, RACEMI DOES NOT REPRESENT OR WARRANT THAT THE RACEMI SOFTWARE OR THIRD PARTY MATERIALS WILL OPERATE WITH OR SUPPORT ALL MODELS OR CONFIGURATIONS OF SERVER FAMILIES OR OPERATING ENVIRONMENTS. 7.2 Third-Party Materials. The Racemi Materials may interoperate with open source software or Third Party Materials. Use of open source software and Third Party Materials is subject to the terms and conditions imposed by the applicable third party licensors or providers of the open source software or Third Party Materials. The license granted to the Racemi Software in this Agreement does not relieve Customer from its obligations to third party licensors including, but not limited to, the number of licenses required. Racemi hereby expressly disclaims all warranties, whether express, implied, statutory or otherwise, related to any open source software or Third Party Materials, including, without limitation, any warranties of non-infringement, merchantability or fitness for a particular purpose. Racemi shall have no liability (including, without limitation, liability for any direct or indirect damages) based upon any open source software or Third Party Materials. 7.3 RACEMI SHALL NOT BE LIABLE TO CUSTOMER, ITS END USERS OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR PENALTIES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF DATA OR OTHER BUSINESS OR PROPERTY DAMAGE) THAT ARISE OUT OF OR RELATE TO THE RACEMI MATERIALS, THIRD PARTY MATERIALS OR ANY SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH DAMAGES OR PENALTIES ARE FORESEEABLE OR RACEMI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR PENALTIES. IN NO EVENT SHALL RACEMI'S CUMULATIVE LIABILITY FOR DAMAGES (DIRECT OR OTHERWISE) EXCEED IN THE AGGREGATE THE FEES THAT CUSTOMER HAS PAID FOR USAGE OF THE RACEMI MATERIALS, IF ANY, DURING THE THREE (3) MONTH PERIOD PRECEDING THE DATE SUCH CLAIM AROSE. EACH LIMITATION ON LIABILITY SET FORTH IN THIS AGREEMENT IS INDEPENDENT OF ANY OTHER LIMITATION, AND IF SUCH LIMITATION FAILS OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE HELD TO BE UNENFORCEABLE, THE VALIDITY OF ANY OTHER LIMITATION SHALL NOT BE AFFECTED. THE PARTIES HAVE ENTERED INTO THIS AGREEMENT AND RACEMI HAS MADE THE RACEMI MATERIALS AVAILABLE IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMER OF WARRANTIES SET FORTH HEREIN; THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. CLAIMS NOT MADE WITHIN SIX (6) MONTHS AFTER COMPANY KNEW OR SHOULD HAVE KNOWN OF THE EXISTENCE OF THE CLAIM SHALL BE DEEMED WAIVED. 7.4 THIS AGREEMENT IS MADE SOLELY BETWEEN RACEMI AND CUSTOMER AND IS NOT INTENDED FOR THE BENEFIT OF ANY THIRD PARTY OR CLASS OF THIRD PARTIES, WHETHER OR NOT IDENTIFIED HEREIN. IN NO EVENT SHALL RACEMI BE LIABLE TO CUSTOMER'S END USERS OR ANY THIRD PARTY UNDER THIS AGREEMENT OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE. SUCH LIABILITY TO THIRD PARTIES HEREBY IS EXPRESSLY DISCLAIMED AND LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. 8. Proprietary Rights 8.1 Ownership. Racemi (or its licensors) owns and retains all proprietary rights, including all patent, copyright, trade secret, trademark and other intellectual property rights, in and to the Racemi Property, and any enhancements, improvements, updates or other modifications thereto. Nothing in this Agreement shall be construed as transferring ownership of any rights to Customer. In the event that any Racemi Property is used, whether permitted by Racemi or not, to create or develop any works including, without limitation, inventions, technology and software, such works and all intellectual property rights associated therewith shall automatically be deemed the exclusive property of Racemi, and Customer shall have no express or implied rights or license to such works or any intellectual property rights associated therewith. 8.2 Proprietary Notices. Customer shall retain Racemi's copyright or proprietary rights notice on any copies of the Racemi Materials, including copyright or proprietary rights notices of third parties that are included on media or in documentation provided by Racemi. 9. Confidential Information "Confidential Information" means non-public, confidential and proprietary business or technical information of Racemi, regardless of the form or media, that is marked or identified as confidential at the time of disclosure or if provided or disclosed orally, is identified as confidential at the time of disclosure and confirmed in a writing within five (5) business days thereafter. Customer acknowledges that Customer may have access to certain Racemi Confidential Information in connection with access to and use of the Racemi Materials and Racemi end user support services. Customer agrees to protect Racemi's Confidential Information from unauthorized disclosure with the same standard of care and discretion it employs with similar information of its own, but in no event less than reasonable care, and shall not disclose or otherwise disseminate Racemi's Confidential Information. Without limiting the foregoing, Customer acknowledges and agrees that the Racemi Property, including the Racemi Software, constitute Confidential Information of Racemi. The obligations of non-disclosure provided hereunder shall continue during the Term of this Agreement and (i) with respect to Confidential Information that does not constitute a trade secret, for a period of three (3) years thereafter and (ii) with respect to Confidential Information that rises to the level of a trade secret under applicable law, for such period of time thereafter as the information shall retain its status as a trade secret under applicable law, and no less than three (3) years thereafter. The nondisclosure obligations in this Section 9 do not apply to any data or information which (i) is already known to Customer prior to access or receipt by Customer pursuant to this Agreement as demonstrated by contemporaneous written records of Customer; (ii) has become generally known to the public through no wrongful act of Customer; (iii) has been rightfully received by Customer from a third party without restriction on disclosure and without, to the knowledge of Customer, a breach of an obligation of confidentiality running directly or indirectly to Racemi; or (iv) is independently developed by Customer without use, directly or indirectly, of the Confidential Information received from Racemi. Customer shall have the right to disclose information which is required to be disclosed pursuant to court order or by law or regulation; provided, however, that in the event disclosure is required by law, regulation or court order, Customer will: (x) notify Racemi of the obligation to make such disclosure promptly and sufficiently in advance of the time required to disclose to allow Racemi the opportunity to seek a protective order, (y) cooperate with Racemi in seeking the protective order, and (z) make disclosure only to the extent required to comply with the law, regulation or court order 10. Assignment. Customer shall not assign or otherwise transfer this Agreement for the Racemi Materials or any of Customer's rights and obligations hereunder or delegate any obligations hereunder, in whole or in part, whether voluntary or by operation of law, for any reason. Any attempted assignment or transfer by Customer of this Agreement for the Racemi Materials is void and of no force or effect. Racemi may assign, delegate or transfer all or any part of this Agreement or any rights hereunder without the need for any approval or consent from Customer. 11. Representations and Warranties; Indemnification. 11.1. Representations and Warranties. Customer represents and warrants that (i) the information provided at the time of subscription is true, correct, accurate and complete when supplied and will be updated and revised as and when any data previously provided becomes in accurate and (ii) Customer has the unrestricted right and authority to enter into and perform under this Agreement. 11.2 Indemnification. Customer agrees to indemnify, defend and hold harmless Racemi, its parents, subsidiaries, and affiliates, and their officers, directors, employees, agents, successors and assigns (collectively, "Indemnified Parties") from and against all liability to third parties and to reimburse the Indemnified Parties for all settlements, judgments, fines, costs, expenses, damages, reasonable legal fees, (including, without limitation, court costs, expert fees, costs and expenses) by reason of any claim, demand, penalty or judicial or administrative proceeding or investigation arising from or in connection with: (i) breach by Customer of its covenants, obligations or representations under this Agreement, including, failure of Customer to perform any of the Customer Obligations; (ii) any claim for loss of data, business interruption or business loss of Customer or any End User; (iii) any claim that the capture, transfer or deployment of any Images violates, infringes upon, or misappropriates any intellectual property rights or other personal or proprietary rights of any person or entity or violates the terms of any agreement; (iv) Customer's violation of applicable federal, state, local or municipal laws, rules, regulations, ordinances, or orders, in connection with Customer's use of the Racemi Materials; or (v) any use of the Racemi Materials or Third Party Materials in a manner that is unauthorized or otherwise inconsistent with the rights and responsibilities of Customer under this Agreement. Customer shall not, without the express written consent of Racemi, settle or consent to entry of any order or judgment with respect to any suit, claim, demand or proceeding under this Section 11.2 that: (i) involves any relief other than the payment of money or damages, or (ii) includes an admission of liability on the part of any Indemnified Party. Racemi may join in the defense, with its own counsel, at its own expense. 12. General 12.1 Remedies. Customer acknowledges and agrees that any breach or threaten breach of any of the provisions of this Agreement, including, without limitation, disclosure of any aspect of the Confidential Information or violation of Racemi's proprietary rights cannot be remedied solely by the recovery of damages. Accordingly, Racemi shall be entitled to the entry of an injunction, without posting of a bond or other security, against the use, copy or disclosure of the Confidential Information or Racemi Materials by Customer or any third party deriving access, copy, use or disclosure of Confidential Information or Racemi Materials in violation of this Agreement and to any other remedies available at law or in equity for any such breach or threatened breach of this Agreement. 12.2 Benchmark. Customer shall not publish, release, or disclose to any third party any result of benchmark tests run on the Racemi Materials. 12.3 Compliance. Customer acknowledges that the Racemi Materials are subject to the U.S. Export Administration Regulations administered by the U.S. Department of Commerce's Bureau of Industry and Security ("EAR") and other U.S. laws. Customer agrees to comply with the EAR and all applicable laws in its handling of the Racemi Materials, and shall have the sole responsibility under this Agreement for obtaining all approvals, consents, licenses and/or permits required under U.S. or country for any export, reexport, import or use of the Racemi Materials and for complying with all applicable laws and regulations, including EAR and applicable US foreign policy controls in its handling of the Licensed Materials prior to use, export or reexport of the Racemi Materials. Customer shall indemnify, defend and hold Racemi harmless from and against any claims against Racemi arising from or otherwise relating to Customer's breach of this Section 12.3. Without limiting the generality of the foregoing, Customer agrees, represents and warrants that the Racemi Materials will not be accessed from, released in, carried to, transferred to, exported to, reexported to, or used to provide services to any person or entity in any country subject to U.S. sanction or embargo administered by the U.S. Department of the Treasury's Office of Foreign Asset Control ("OFAC") or to any person or entity on OFAC's Specially Designated Nationals List or the Entity List or Denied Persons List of the EAR. Customer further agrees to impose corresponding contractual obligations on all of its subcontractors to ensure they meet the requirements of this Section. 12.4 Restricted Rights. Notice to U.S. Government End Users. The Racemi Materials are "Commercial Items," as that term is defined at 48 C.F.R. $ 2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. $ 12.212 and 48 C.F.R. $ 227.7202, as applicable. Consistent with 48 C.F.R. $ 12.212 or 48 C.F.R. $ $ 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights are reserved under the copyright laws of the United States. 12.5 Force Majeure. Except for payment of fees due by Customer, neither party to this Agreement will be liable to the other for any failure or delay in performance under this Agreement due to circumstances beyond its reasonable control including, without limitation, acts of God, labor disruption, war, terrorist threat or government action, fire, flood, embargo, quarantine, epidemic, malicious acts of third parties (including, without limitation, the introduction of computer viruses), interruption of telecommunications service. 12.6 Notices. Any notices or consents required or permitted by this Agreement shall be in writing and shall be deemed delivered if (i) personally delivered; (ii) sent by certified mail, postage prepaid thereon, return receipt requested, or (iii) if delivered by any overnight service, with a signed acknowledgement of receipt. Notices to Racemi shall be sent to the following address: Racemi, Inc., 360 Interstate North Parkway SE, Suite 360, Atlanta, GA, 30339, Attn: Racemi CFO. Notice to Customer shall be sent to the address provided to AWS through the AWS Marketplace. 12.7 Relationship. Nothing in this Agreement shall be construed to make the parties partners, joint ventures, representatives or agents of each other, nor shall either party, directly, indirectly, in writing or otherwise, so represent to any third person. Customer is not entitled to act on behalf of, issue statements or enter into commitments in the name of Racemi. Customer will not make any statements concerning any Racemi Software to any End User or otherwise misrepresent the product features, functionality, or capabilities of any Racemi Software; and (ii) make any representations, warranties, or commitments to any End User the Racemi Software, or provide for any indemnities or related obligations on behalf of Racemi. 12.8 Miscellaneous. Failure or delay by either party to enforce any provisions of this Agreement or any rights with respect to it or the failure to exercise any option provided under this Agreement shall in no way be considered to be a waiver of that provision, right or option, or in any way to affect the validity of this Agreement. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Georgia without reference to principles of conflicts of law. Jurisdiction and venue for any claim or cause of action arising under this Agreement shall be exclusively in the United States District Court for the Northern District of Georgia, and the parties submit to personal jurisdiction of, and waive any personal jurisdiction or inconvenient forum objection to, that court. If subject matter jurisdiction does not exist in the United States District Court for the Northern District of Georgia, then the exclusive forum and venue for any such action shall be the courts of the State of Georgia located in Fulton County and the parties submit to personal jurisdiction of, and waive any personal jurisdiction or inconvenient forum objection to, such court. In the event of a dispute, and prior to filing any litigation, the parties agree to escalate discussions to at least senior management level and to discuss in good faith the possible utilization of alternative dispute resolution procedures, including, but not limited to, non-binding mediation. NOTWITHSTANDING THE FOREGOING, RACEMI MAY SEEK AN INJUNCTION TO PROTECT ITS INTELLECTUAL PROPERTY RIGHTS IN ANY JURISDICTION. Section headings have been included in this Agreement merely for convenience, and are not to be considered part of this Agreement or to be used in the interpretation hereof. If any provision is held invalid or unenforceable, the provision shall be deemed modified only to the extent necessary to render it valid or eliminated, as applicable, and this Agreement shall be enforced and construed as if the provision had been included in this Agreement as modified or not included, as applicable. This Agreement constitutes the entire agreement between the parties. This Agreement supersedes all prior or contemporaneous oral, implied or written agreements and shall take precedence over any inconsistent provisions contained in any purchase order issued by the Customer or other communication between the parties related thereto. No modification or amendment of this Agreement by Customer, shall be effective or enforceable, unless it is in writing and signed by Racemi. Racemi may modify this Agreement at any time, in its discretion, by posting a revised version on the registration website for the Racemi Materials or otherwise making it available to Customer for review. Any modifications to this Agreement will supersede the Agreement after posting or availability of the modified Agreement and will apply to continued access to and use of the Racemi Materials by Customer after posting or availability of the modified Agreement to Customer.