1. AGREEMENT

1.1 By installing or using OpsDash (the "Software") a product by RapidLoop, Inc. (the “Company”) you indicate your agreement to the Terms and Conditions of Use of this End User License Agreement (the "Agreement").

1.2 USE OF THE SOFTWARE IS SUBJECT TO YOUR ACCEPTANCE OF THE TERMS SET FORTH BELOW. IF YOU DO NOT ACCEPT THESE TERMS YOU ARE NOT AUTHORIZED TO USE THE SOFTWARE.

1.3 Except to the extent expressly licensed herein, all rights are reserved to the Company and its suppliers.

2. DEFINITIONS

Software means OpsDash Code and, if any, Third Party Code (as such term is defined herein. Documentation means the user guide, help information and/or other documentation generally provided by Licensor to licensees of the Software. ). License Fee means the annual fee set out in the Sales Order payable for the license to use the Software. OpsDash Code means RapidLoop’s proprietary computer programs (in object code) that are specifically identified in the Sales Order or otherwise intentionally delivered to the Licensee under this Agreement.

3. LICENSE

3.1 Software. Subject to all terms and conditions in this Agreement, Licensor grants to Licensee a nonexclusive, non-transferable, nonsublicenseable right and license to use the Software and the Documentation for internal business purposes for the specified term and conditions pertaining to the license type you have requested:

Limited Free (monitor 5 or fewer servers and 5 or fewer services with a single OpsDash Server instance)

(a) The Company may make a limited version of the Software available from time to time for which a license fee is not payable.

(b) All of the functionality of the Software may not be available to you in the limited, free version.

(c) You may run a single instance of the OpsDash Server on a single bare-metal or virtualized machine to monitor up to 5 servers and 5 services with the Limited Free version of OpsDash.

(d) You must not at any time attempt to activate by any means any feature in the limited, free version which has been intentionally disabled by the Company.

(e) The license for the limited, free version of the software may be terminated by the Company at any time, without prior notice.

30-Day Free Trial (monitor up to 100 servers and unlimited services with a single OpsDash Server instance)

(a) The Company may make a free trial version of the Software available from time to time for which a license fee is not payable.

(b) All of the functionality of the Software may not be available to you in the limited, free version.

(c) You must not at any time attempt to activate by any means any feature in the limited, free version which has been intentionally disabled by the Company.

(d) The Free Trial is available to you for a single 30-day period.

(e) You may run a single instance of the OpsDash Server on a single bare-metal or virtualized machine and use it to monitor up to 100 servers with the 30-day Free Trial version of OpsDash.

(f) The license for the free trial version of the software may be terminated by the Company at any time, without prior notice.

Paid Annual License (monitor up to the number of servers specified in the Sales Order and unlimited services with a single OpsDash instance)

(a) You may run a single instance of the OpsDash Server on a single bare-metal or virtualized machine to monitor up to the number of servers specified in the Sales Order and an unlimited number of services for a term of one year.

(b) If you need to monitor additional servers, you may top up your license to the next tier during your license term. The price will be pro-rated based on the time left in your base license.

(c) Subject to this Agreement, if you have a currently valid Paid Annual License, RapidLoop will provide email support (“Support”). Although no response times are guaranteed, RapidLoop will use commercially reasonable efforts to respond to such support requests within 2 business days.

3.2 Limitations. The Software is licensed as a single product and Licensee may not separate or use its component parts beyond that which is expressly authorized in the Sales Order. In addition, Licensee agrees that its use of the Software shall comply with all other limitations, prohibitions and conditions set forth in the Sales Order (including without limitation, any restriction regarding: Software usage, such as the number of installed instances and servers or services monitored; the time period during which use of the Software is permitted).

3.3 License Control. Licensee acknowledges that the Software may contain code or require license keys that detect or prevent unauthorized use of, or disable, the Software. Licensee shall in no case attempt to modify, delete, or disable such code.

4. PAYMENTS

4.1 Fees. Licensee agrees to pay Licensor the License Fees in the amounts and at the times specified in the Sales Order. Unless otherwise specified in the Sales Order, after the initial term, license fees will be increased to the then current pricing plan.

4.2 Payment Terms. Unless otherwise specified, all Fees due hereunder shall be paid annually in advance. The first annual License Fees will be invoiced and due on the Effective Date. Subsequent annual License Fees will be invoiced at least 30 days prior to the anniversary of the License Term, and are due in full no later than the anniversary of the original License. All payments shall be in US dollars.

4.3 Taxes. All payments required by this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Licensee agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Licensor’s net income.

5. CONFIDENTIALITY

5.1 Scope. The term Confidential Information means all trade secrets, know-how, inventions, developments, software and other financial, business or technical information of Licensor (or any of its licensors or customers) that is disclosed by or for Licensor or that is otherwise learned or accessed by Licensee, but not including any information that Licensee can demonstrate is (a) rightfully furnished to it without restriction by a third party without breach of any separate obligation to Licensor, (b) generally available to the public without breach of this Agreement or (c) independently developed by it without reliance on such information.

5.2 Confidentiality. Except for the specific rights granted by this Agreement, Licensee shall not possess, use or disclose any Confidential Information without Licensor’s prior written consent, and shall use reasonable care to protect the Confidential Information. Licensee may only disclose Confidential Information to its employees and contractors who have a need to know for the purposes of this Agreement and who are bound by confidentiality obligations that are at least as protective as the provisions herein. Licensee shall be responsible for any breach of confidentiality by its employees and contractors. Promptly after any termination of this Agreement (or at Licensor’s request at any other time), Licensee shall return all tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records and materials developed therefrom.

6. PROPRIETARY RIGHTS

6.1 Restrictions. Except as specifically permitted in this Agreement, Licensee shall not directly or indirectly: (a) use any Confidential Information to create any software or documentation that is similar to any Software or Documentation; (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code or underlying ideas, algorithms or organization of the Software (except and only to the extent that these restrictions are expressly prohibited by applicable statutory law); (c) encumber, loan, lease, rent, sublicense, transfer or distribute any Software, or use the Software for the benefit of any third party (e.g., service bureau arrangement); (d) copy, create derivative works of or otherwise modify any Software or Documentation; (e) use or allow the transfer, transmission, export or re-export of all or any part of the Software (or any product thereof) in violation of any export control laws or regulations of any other relevant jurisdiction; or (f) permit any third party to do any of the foregoing. Licensee will promptly notify Licensor in writing of any unauthorized use, reproduction or distribution of any Software.

6.2 No Implied Licenses. Except for the limited rights and licenses expressly granted hereunder, no other license is granted (by implication, estoppel or otherwise), no other use is permitted and Licensor (and its licensors) shall retain all rights, title and interests (including all patent rights, copyright rights, trade secret rights and all other intellectual property and proprietary rights) in and to the Software and Documentation. Licensee agrees not to take any action inconsistent with such ownership.

6.3 Markings. Licensee shall not (and shall not permit any third party to) alter, obscure or remove any patent, trademark or other proprietary or legal notice deployed by or contained on any Software or Documentation.

6.4 Third Party Code. The OpsDash Code may operate, interface or be delivered with software or other technology that is identified in the Documentation (“Third Party Code”) and licensed from and owned by third parties (“Third Party Licensors”). Licensee agrees that (a) it will use Third Party Code in accordance with this Agreement (unless different terms are specified in the applicable license set forth or referenced in the Documentation), (b) no Third Party Licensor makes any representation or warranty to Licensee concerning the Software, and (c) no Third Party Licensor will have any obligation or liability to Licensee as a result of this Agreement or Licensee’s use of the Software. Upon Licensee’s specific written request received during the term of this Agreement, Licensor will make available the source code for Third Party Code, but only if such source code was made available to the Company and doing so is required by the applicable license.

7. NO WARRANTY

THE SOFTWARE, DOCUMENTATION AND SUPPORT SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL BE COMPATIBLE WITH ANY LICENSEE APPLICATION OR ENVIRONMENT OR OTHERWISE MEET LICENSEE’S REQUIREMENTS, OR THAT OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITSELF AND ITS LICENSORS, LICENSOR HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, INTEGRATION, ACCURACY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE.

8. INDEMNIFICATION

You agree to hold harmless, indemnify and defend the Company, its officers, employees, contractors, agents and suppliers against any loss (including consequential loss), damage, fine, or expense (including legal fees on an indemnity basis) arising out of or related to any act or omission of you, your officers, employees, contractors, or agents including, but not limited to: breach of this agreement or any other use or misuse of the Software contrary to the Company’s proprietary rights; breach of any applicable law in any relevant jurisdiction; or infringement of third party intellectual property rights being provided modifications that would have avoided the alleged infringement, or (f) any intellectual property right in which Licensee or any of its affiliates has an interest.

8. INDEMNIFICATION

8.1 Entire Liability. The foregoing states Licensor’s entire liability, and Licensee’s exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Software or any part thereof or by its use or operation.

9. LIMITATION OF LIABILITY. LICENSOR (AND ITS LICENSORS) SHALL NOT BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING THE INDEMNIFICATION), REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL, (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE LICENSE FEES PAID BY LICENSEE TO LICENSOR FOR THE SOFTWARE GIVING RISE TO SUCH DAMAGES DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.

10. TERM AND TERMINATION

10.1 Term. For all paid licenses, this Agreement shall commence on the Effective Date and continue in effect for the License Term of 1-year unless specified otherwise in the Sales Order. The 30-day Free Trial License shall commence on SignUp and remain in effect for 30 days. The Free Trial License may be terminated by the Company at any time, without prior notice. For the Limited Free License, this Agreement shall commence on SignUp and shall remain in effect as long as the software is in use by the Licensee. The Limited Free License may be terminated by the Company at any time, without prior notice.

10.2 Termination. This Agreement may be terminated (a) by either party if the other party materially breaches a provision of this Agreement and fails to cure such breach within 30 days (10 days in the case of any non-payment) after receiving written notice of such breach from the non-breaching party; or (b) by either party immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.

10.3 Effects of Termination. Upon termination of this Agreement for any reason, all rights, obligations and licenses of the parties hereunder shall cease, except that (a) all obligations that accrued prior to the effective date of termination and any remedies for breach of this Agreement shall survive any termination, (b) Licensee shall promptly return or destroy all Software and other tangible Confidential Information, and permanently erase all Confidential Information from any computer and storage media, and (c) the provisions of Sections 4 (Payments), 5 (Confidentiality), 6 (Proprietary Rights), 7 (No Warranty), 8 (Indemnification), 9 (Limitation of Liability) and 11 (General Provisions) and this Section 10.3 shall also survive.

11. GENERAL PROVISIONS

11.1 Entire Agreement. This Agreement including the Sales Order, constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement. Terms set forth in any Licensee’s document that are in addition to or at variance with the terms of this Agreement are specifically waived by Licensee. All such terms are considered to be proposed material alterations of this Agreement and are hereby rejected. None of the provisions of this Agreement shall be deemed to constitute a partnership or agency between you and RapidLoop and you shall have no authority to bind RapidLoop in any form or manner, whatsoever. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is in English only, which shall be controlling in all respects. No version of this Agreement in another language shall be binding or of any effect.

11.2 The Company may amend this Agreement at any time or from time to time by notifying you by email, through your RapidLoop account or via website updates. Your continued use of the Software after any such notification shall constitute acceptance of any such amendment. You acknowledge and agree that it is your responsibility to review the Agreement from time to time and accept any such changes or, if you do not accept the Agreement as amended, to immediately cease using the Software in accordance with this Agreement.

11.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to its conflicts of law provisions.

11.4 Remedies. Unless specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Licensee agrees that, in the event of any breach or threatened breach of Section 5: Confidentiality or Section 6: Proprietary Rights, Licensor will suffer irreparable damage for which there is no adequate remedy at law. Accordingly, Licensor shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.

11.5 Notices. Any notice or communication hereunder shall be in writing and either personally delivered, or sent via confirmed electronic mail, or sent via recognized express delivery courier or certified or registered mail, prepaid and return receipt requested, addressed to the other party at its address specified above or in the Sales Order, or at such other address designated in a subsequent notice. All notices shall be in English, effective upon receipt.

11.6 Assignment. This Agreement and the rights and obligations hereunder are personal to Licensee, and may not be assigned or otherwise transferred, in whole or in part, without Licensor’s prior written consent. Any attempt to do otherwise shall be void and of no effect. Without Licensee’s consent, Licensor may assign this Agreement to any third party. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties.

11.7 Customer Listings. During the license term. RapidLoop may list Licensee as a customer and use Customer’s name and logo on the Site, on publicly available customer lists and in media releases.

11.8 Government License. If any user of the Software or Documentation is a department, agency or other entity of the US Government, then use, duplication, reproduction, modification, release, disclosure or transfer of the Software and Documentation is restricted in accordance with FAR 12.212 for civilian agencies and DFAR 227.7202 for military agencies. The Software is commercial computer software and the Documentation is commercial computer software documentation, and their use is further restricted in accordance with the terms of this Agreement.

11.9 Acknowledgment. Licensee acknowledges that (a) it has read and understands this Agreement, (b) it has had an opportunity to have its legal counsel review this Agreement, (c) this Agreement has the same force and effect as a signed agreement, (d) Licensor requires identification of the Licensee before issuing this license, and (e) issuance of this license does not constitute general publication of the Software, Documentation or Confidential Information.