Confidential Document

MASTER SUBSCRIPTION AGREEMENT

THIS MASTER SUBSCRIPTION AGREEMENT (THIS “AGREEMENT”) GOVERNS CUSTOMER’S ACQUISITION, ACCESS, AND USE OF THE SOFTWARE AS A SERVICE PLATFORM PROVIDED BY USAGEAI (“COMPANY”). CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. COMPANY AND CUSTOMER ARE SOMETIMES REFERRED TO IN THIS AGREEMENT COLLECTIVELY AS THE “PARTIES” AND INDIVIDUALLY AS A “PARTY.”

BY ACCEPTING THIS AGREEMENT BY (1) CLICKING A BOX INDICATING ACCEPTANCE OR (2) ACCESSING OR USING THE SERVICES, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT AND THE COMPANY’S PRIVACY POLICY (AVAILABLE AT https://www.usage.ai/PrivacyPolicy.html), WHICH IS INCORPORATED HEREIN BY REFERENCE. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS AND CONDITIONS SET FORTH HEREIN, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. THE EFFECTIVE DATE OF THIS AGREEMENT (“EFFECTIVE DATE”) IS THE DATE THAT YOU ACCEPT OR AGREE TO THIS AGREEMENT BY CLICKING “I ACCEPT,” OR OTHERWISE ACCESSING, OR USING THE SERVICES.

  1. Definitions.
  1. Authorized Purpose” means Customer’s internal business purposes.

  2. Authorized User” means Customer’s employees, consultants, contractors, and/or agents who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and are provided with Service account logins by Company.  

  3. Confidential Information” means any information disclosed by either Party to the other Party, either directly or indirectly, in writing, orally or by inspection of tangible objects (including, without limitation, documents, prototypes, samples, plant and equipment), which is designated as "Confidential," "Proprietary" or some similar designation at the time of disclosure.  Information communicated orally will be considered Confidential Information if such information is confirmed in writing as being Confidential Information within a reasonable time (no more than ten (10) days) after the initial disclosure.  Confidential Information may also include information disclosed to a disclosing Party by third parties.  In addition, Company Confidential Information includes, but is not limited to, this Agreement, any addenda hereto signed by both Parties, the Service, any responses to technical support requests, and any business information, technical data, or know-how relating to the Service, any services, or any associated technology or services, including without limitation all such information disclosed in written form.  Confidential Information will not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing Party; (ii) becomes publicly known and made generally available after disclosure by the disclosing Party to the receiving Party through no action or inaction of the receiving Party; (iii) is already in the possession of the receiving Party at the time of disclosure by the disclosing Party as shown by the receiving Party’s files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the receiving Party’s possession.  

  4. Service” means the online platform to which access is provided to Customer pursuant to this Agreement and which allows Authorized Users to analyze Customer’s usage of its Amazon Web Services and to identify potential cost saving measures relating thereto.

  5. Term” shall have the meaning set forth in Section 7.1.

  1. Access to Service.
  1. Grant.  Subject to the terms and conditions of this Agreement, Company hereby grants to Customer a nonexclusive and nontransferable right during the Term to allow the Authorized Users to access and use the Service for the Authorized Purpose.  Customer shall not allow access to the Service by any person other than an Authorized User or for use other than as reasonably necessary for the Authorized Purpose.

2.2 Reservation of Rights.  Customer acknowledges that it is only granted access to the Service for the Authorized Purpose during the Term in accordance with Section 2.1 and agrees that it shall not use the Service except as permitted under Section 2.1.  Customer acknowledges that Company retains title to the Service.  Company hereby reserves all rights to the Service or any copyrights, patents, trademarks or other intellectual property rights embodied or used in connection therewith, except for the rights expressly granted herein.

2.3 Additional Restrictions.  Customer shall not itself, or through any parent, subsidiary, affiliate, agent or other third party: (a) transfer, distribute, sell, lease, license or sublicense access to the Service; (b) attempt to decompile, disassemble, or reverse engineer the Service, in whole or in part; (c) allow access to the Service by any person other than an Authorized User; (d) write or develop any derivative software or any other software program based upon the Service or any Company Confidential Information; (e) use the Service to provide processing services to third parties, or otherwise use the Service on a ‘service bureau’ basis; or (f) provide, disclose, divulge or make available to, or permit use of the Service by any third party without Company’s prior written consent.

2.4 Authorized Users.  Customer acknowledges and agrees that it is responsible for all use or misuse of the Service by its Authorized Users, and a breach by any such Authorized User of any term of this Agreement shall be deemed a breach under this Agreement.  As between the Parties, Customer agrees that it is responsible for notifying and obtaining the agreement of such Authorized Users to the restrictions with respect to the Service.  Company reserves the right to immediately suspend any or all Authorized Users’ access to the Service if Company believes, in its sole discretion, that an Authorized User has misused the Service. Each Service account login provided to an Authorized User is personal to that specific individual and may not be transferred, sold or otherwise assigned to or shared with any other individual or entity.  Customer shall notify Company if Customer wishes to add Authorized Users; Customer may accept or deny such request in its sole discretion.  

2.5 Feedback.  From time to time, Customer may provide to Company (either on its own accord or at the request of Company) feedback, analysis, suggestions and comments (including, but not limited to, bug reports and test results, and design suggestions or ideas) related to the Service (collectively, “Feedback”) .  As between Company and Customer, all right, title and interest in and to any such Feedback shall be owned by Company.  Customer agrees that Company shall have the perpetual, irrevocable and worldwide right to use, modify, license, sublicense and otherwise exploit all or part of the Feedback or any derivative thereof in any manner or media now known or hereafter devised without any remuneration, compensation or credit to Customer.  

        2.6        BuyBack Program. Customer may apply to receive additional services from Company relating to its BuyBack Program, whereby Customer may transfer its unused Amazon EC2 Reserved Instance capacity to a third party purchaser identified by Company through the services provided in connection with the Program or to Company (the “Program”). Customer’s acceptance and participation in the Program shall, at all times, be subject to Company’s approval and those additional terms and conditions set forth in Exhibit A. Company reserves the right to terminate Customer’s participation in the Program or to cancel the entire Program at any time for any reason or no reason upon written notice to Customer in its sole discretion.

3.  Fees.

3.1 Payment of Subscription Fees.  In consideration of the access granted pursuant to Section 2.1, Customer shall pay Company a subscription fee of $0.00 per month (“Subscription Fee”).  The first monthly payment for the Subscription Fees is due and payable in full upon the Effective Date; each subsequent payment is due on the monthly anniversary of the Effective Date (or, if on a date which does not occur in every month, on the closest date preceding such anniversary date).

3.2 Payment of Savings Fee.  In addition to the Subscription Fee, during the Term, Company shall also be entitled to twenty percent (20%) of the net cost reduction in Customer’s aggregate costs associated with its Amazon Web Services account resulting from the adoption, integration, implementation, and/or placing into effect of a suggestion, change, or recommendation provided by the Company through the Service (“Savings Fee,” and together with the Subscription Fee, the “Fees”).

3.3 Invoicing; Interest.  Company will invoice Customer regularly according to its standard practices for the Services, and all Fees are due within thirty (30) days from the invoice date. Any amounts not paid within thirty (30) days will be subject to interest of one and a half percent (1.5%) per month, which interest will be immediately due and payable.  All payments hereunder must be in US dollars and made by credit card, ACH wire transfer, or through a third party payment processor.

3.4 Taxes.  All charges and fees provided for in this Agreement are exclusive of any taxes, duties, or similar charges imposed by any government.  Customer shall pay or reimburse Company for all federal, state, dominion, provincial, or local sales, use, personal property, excise or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement (other than taxes on the net income of Company).

4.  Warranty and Limitation of Liability

4.1 Warranties by Customer. Customer represents and warrants to Company that: (a) it has the legal right, capacity and authority to enter into this Agreement and the execution, delivery and performance of this Agreement by such Party has been duly authorized by all necessary corporate action; (b) the execution, delivery and performance of this Agreement by such Party will not violate, conflict with, or cause a default under (i) its charter documents or bylaws or (ii) any material agreement, lease, instrument or other contract to which such Party is a party or by which it is bound; and (c) it has all rights, licenses, permits, qualifications and consents necessary to perform its obligations in the Agreement, including, without limitation, the granting of access to the information, materials, content, or data relating to Customer’s Amazon Web Services account.  

4.2. Disclaimer.  Company makes no warranties, whether express, implied, or statutory regarding or relating to the Service, or any materials or services furnished or provided to Customer under this Agreement.  COMPANY HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICE AND SAID OTHER MATERIALS AND SERVICES, AND WITH RESPECT TO THE USE OF ANY OF THE FOREGOING.  

4.3 Limitation of Liability.  IN NO EVENT WILL COMPANY BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE SERVICE OR CUSTOMER’S PARTICIPATION IN THE PROGRAM, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  COMPANY’S LIABILITY UNDER THIS AGREEMENT FOR DAMAGES WILL NOT, IN ANY EVENT, EXCEED THE SUBSCRIPTION FEES PAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT. The provisions of this Section 4 allocate risks under this Agreement between Customer and Company.  Company’s pricing of the Service reflects this allocation of risks and limitation of liability.

5.  Indemnification

5.1  Indemnity by Company.  Company shall, at its expense, defend or settle any claim, action or allegation brought against Customer that the Service infringe any copyright or trade secret of any third party and shall pay any final judgments awarded or settlements entered into.  Company will have the exclusive right to defend any such claim, action or allegation and make settlements thereof at its own discretion, and Customer may not settle or compromise such claim, action or allegation, except with prior written consent of Company. In the event any such infringement, claim, action or allegation is brought or threatened, Company may, at its sole option and expense: (a) procure for Customer the right to continue use of the Service or infringing part thereof; or (b) modify or amend the Service or infringing part thereof, or replace the Service or infringing part thereof with other software having substantially the same or better capabilities; or, (c) if neither of the foregoing is commercially practicable, terminate this Agreement and repay to Customer a pro rata portion, if any, of any pre-paid Subscription Fees.  Company and Customer will then be released from any further obligation to the other under this Agreement, except for the obligations of indemnification provided for above and such other obligations that survive termination.

5.2  Exclusions  Company shall have no liability hereunder if the actual or alleged infringement results from (a) Customer’s breach of this Agreement, (b) any modification, alteration or addition made to the Service or any use thereof, including any combination of the Service with software or other materials not provided by Company, (c)  Customer’s failure to use any corrections or modifications made available by Company that would not result in any material loss of functionality, (d) use of the Service in a manner or in connection with a product or data not contemplated by this Agreement, or (e) any settlements entered into by Customer or costs incurred by Customer for such claim that are not pre-approved by Company in writing.

5.3  Limitation. THIS SECTION 5 STATES THE ENTIRE LIABILITY OF COMPANY WITH RESPECT TO INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER PROPRIETARY RIGHT.

5.4  Indemnity by Customer.  Customer shall, at its expense, defend or settle any claim, action or allegation brought against Company arising out of or in connection with (a) a violation of applicable law by Customer or its Authorized Users, (b) any materials or information (including any documents, data, specifications, software, content, or technology) provided or otherwise disclosed to Company by or on behalf of Customer or any Authorized User; (c) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; (d) a breach or other conflict with any other agreement to which Customer is a party or by which it is bound; and (e) the gross negligence or willful misconduct of Customer or any of its Authorized Users.

5.5  Procedures.  Any claim subject to indemnification under this Section 5 will be subject to the following provisions: (a) the indemnifying Party will be given prompt written notice of the claim by the indemnified Party, provided that any delay in providing notice will not relieve the indemnifying Party of its indemnity obligations under this Agreement unless, and only to the extent, the indemnifying Party was prejudiced by the delay; (b) the indemnifying Party will have the right to control the defense and all negotiations relative to the settlement of any such claim, provided that no settlement admitting liability on the part of the indemnified Party may be made without the express written consent of the indemnified Party; and (c) the indemnified Party will reasonably cooperate with the indemnifying Party and its counsel at the indemnifying Party’s cost and expense.  

6. Confidential Information

6.1  Non-Use and Non-Disclosure.  Each Party agrees not to use any Confidential Information of the other Party for any purpose except to exercise its rights and perform its obligations under this Agreement.  Each Party agrees not to disclose any Confidential Information of the other Party to third parties or to such Party’s employees who do not have a need to know. Notwithstanding, a receiving Party may disclose such Confidential Information that is required by law to be disclosed if the receiving Party gives the disclosing Party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure. Neither Party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other Party’s Confidential Information and which are provided to the Party hereunder.

6.2  Maintenance of Confidentiality.  Each Party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other Party.  Without limiting the foregoing, each Party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees who have access to Confidential Information of the other party have signed a non-use and non-disclosure agreement in content similar to the provisions hereof, prior to any disclosure of Confidential Information to such employees.  Neither Party shall make any copies of the Confidential Information of the other Party unless the same are previously approved in writing by the other Party.  Each Party shall reproduce the other Party’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.

6.3 Return of Materials.  Upon the termination or expiration of this Agreement, each Party shall deliver to the other Party all of such other Party’s Confidential Information that such Party may have in its possession or control.

7.  Term and Termination

7.1  Term.  This Agreement will take effect on the Effective Date and, unless earlier terminated pursuant to this Section 7, will remain in force and effect until one (1) month from the Effective Date (the “Initial Term”).  After the Initial Term, this Agreement will automatically renew on a month-to-month basis (the “Renewal Term”).  Collectively, the Initial Term and Renewal Terms are the “Term.”

7.2  Termination by Customer.  This Agreement may be terminated by Customer upon thirty (30) days’ prior written notice to Company, with or without cause, provided that no such termination will entitle Customer to a refund of any portion of the Fees.

7.3 Termination Events. Company may, by written notice to Customer, terminate this Agreement if any of the following events (“Termination Events”) occur:

(a) Customer fails to pay any amount due Company within thirty (30) days after Company gives Customer written notice of such nonpayment; or

(b) Customer is in material breach of any nonmonetary term, condition or provision of this Agreement, which breach, if capable of being cured, is not cured within thirty (30) days after Company gives Customer written notice of such breach; or

(c) Customer (i) terminates or suspends its business, (ii) becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority, or (iii) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes.

If any Termination Event occurs, termination will become effective immediately or on the date set forth in the written notice of termination.  Termination of this Agreement will not affect the provisions regarding Customer’s or Company’s treatment of Confidential Information, provisions relating to the payment of amounts due, or provisions limiting or disclaiming Company’s liability, which provisions will survive termination of this Agreement.

7.4 Survival and Termination Obligations.  Immediately upon expiration or termination of this Agreement for any reason whatsoever, Customer will cease all access to and use of the Service.  In addition, no later than thirty (30) days after the date of termination or discontinuance of this Agreement for any reason whatsoever, Customer shall return all any Confidential Information of the Company in its possession that is in tangible form.  Customer shall furnish Company with a certificate signed by an executive officer of Customer verifying that the same has been done.  Sections 2.2-2.5, 3, 4.2, 4.3, 5, 6, 7.3-7.4, and 8 shall survive any termination or expiration of this Agreement.

8.  Miscellaneous

8.1 Assignment. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Customer, in whole or in part, whether voluntary or by operation of law, including by way of sale of assets, merger or consolidation, without the prior written consent of Company. Company may assign this Agreement without consent in connection with its reorganization, reincorporation, sale of assets, merger or consolidation, without the prior written consent of Customer.  Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors and assigns.  Any assignment in violation of this Section 8.1 shall be null and void.

8.2 Notices. Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be (a) delivered in person, (b) sent by first class registered mail, or air mail, as appropriate, or (c) sent by overnight air courier, in each case properly posted and fully prepaid to the appropriate address set forth in the first paragraph of this Agreement.  Either Party may change its address for notice by notice to the other Party given in accordance with this Section.  Notices will be considered to have been given at the time of actual delivery in person, three (3) business days after deposit in the mail as set forth above, or one day after delivery to an overnight air courier service.

8.3 Limitation on Claims.  No action arising out of any breach or claimed breach of this Agreement or transactions contemplated by this Agreement may be brought by either Party more than one year after the cause of action has accrued.  For purposes of this Agreement, a cause of action will be deemed to have accrued when a Party knew or reasonably should have known of the breach or claimed breach.

8.4 No Warranties.  No employee, agent, representative or affiliate of Company has authority to bind Company to any oral representations or warranty concerning the Service.  Any written representation or warranty not expressly contained in this Agreement will not be enforceable.

8.5 Force Majeure.  Neither Party will incur any liability to the other Party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the Parties.  Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquake, fire and explosions, but the inability to meet financial obligations is expressly excluded.

8.6 Waiver.  Any waiver of the provisions of this Agreement or of a Party’s rights or remedies under this Agreement must be in writing to be effective.  Failure, neglect, or delay by a Party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such Party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such Party’s right to take subsequent action. No exercise or enforcement by either Party of any right or remedy under this Agreement will preclude the enforcement by such Party of any other right or remedy under this Agreement or that such Party is entitled by law to enforce.

8.7 Severability.  If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the Parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement.  If the Parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.

8.8 Integration.  This Agreement (including any addenda hereto signed by both Parties) contains the entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the Parties with respect to said subject matter.  This Agreement may not be amended, except by a writing signed by both Parties.

8.9 Purchase Orders.  No terms, provisions or conditions of any purchase order, acknowledgement or other business form that Customer may use in connection with the acquisition or licensing of the Service will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of Company to object to such terms, provisions or conditions.

8.10 Export.  Customer acknowledges that the Service may contain features subject to United States and local country laws governing import, export, distribution and use. Customer is responsible for compliance by the Customer and its Authorized Users with United States and local country laws and regulations and shall not export, use or transmit the Service (i) in violation of any export control laws of the United States or any other country, or (ii) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Order.

8.11 U.S. Government Restricted Rights.  If the Service is accessed or used by any agency or other part of the U.S. Government, the U.S. Government acknowledges that Company provides the Service, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Company to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.

8.12 Publicity.  Customer acknowledges that Company may desire to use its name in press releases, product brochures and financial reports indicating that Customer is a customer of Company, and Customer agrees that Company may use its name in such a manner, subject to Customer’s consent, which consent will not be unreasonably withheld.

8.13 Counterparts.  This Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement.

8.14 Governing Law.  This Agreement shall be governed by the laws of the United States and the State of New York, without reference to conflict of laws principles.  Any dispute between the Parties regarding this Agreement will be subject to the exclusive venue of the state and federal courts in New York County, New York.  The Parties hereby consent to the exclusive jurisdiction and venue of such courts.


Exhibit A

BuyBack Program Terms and Conditions

  1. The Program.
  1. Scope. Subject to the terms and conditions set forth herein, Customer agrees to promptly transfer Customer’s unused Amazon EC2 Reserved Instance capacity (“AWS Reserved Instance”) to a third party purchaser identified by Company through the services provided in connection with the Program or to Company (each a “Third Party Purchaser”) as set forth herein.

  2. Restrictions. The AWS Reserved Instance must: (i) be an EC2 Standard Reserved Instance and must not be in the GovCloud region; (ii) have a remaining term of at least one (1) month; (iii) have been active for at least thirty (30) days; and (iv) be fully paid up with no outstanding balances due and payable to Amazon.

1.3        Further Assurances; Failure to Transfer.  Customer shall promptly execute all documents, papers, forms, and authorizations, and take such other actions as are necessary to effectuate the transfer of ownership and control of the AWS Reserved Instance to the applicable Third Party Purchaser, and cause the AWS Reserved Instance to be registered in the name of the applicable Third Party Purchaser. If Customer fails to promptly complete the contemplated transfer, Company may in addition to, and not in lieu of, all other remedies available at law or in equity, terminate Customer’s participation in the Program by written notice to Customer, which notice may be given via email. Customer agrees and acknowledges that it will remain liable and responsible for the performance of any obligations or liabilities under the registration agreement for the AWS Reserved Instance between Customer and Amazon until the AWS Reserved Instance is successfully sold and transferred to a Third Party Purchaser.

1.4        Assignment.        Customer hereby irrevocably sells, assigns, transfers, and conveys to the applicable Third Party Purchaser all right, title, and interest in and to the AWS Reserved Instance.  

1.5        Cap. Under no circumstance shall Customer (together with its affiliates) be able to sell more than $5,000 (USD) in AWS Reserved Instances per year under the Program, unless otherwise agreed to by Company in writing.

  1. Fees.

2.1        Purchase Price. If the Third Party Purchaser is Company, Company shall purchase the applicable AWS Reserved Instance from Customer in an amount equal to the fees paid by Customer to Amazon for the applicable AWS Reserved Instance, which shall be pro-rated for the number of unused months remaining for such AWS Reserved Instance’s term, which will be rounded down to the nearest month (“Purchase Price”).

2.2        Upfront Fee. Customer acknowledges and agrees that: (i) Customer may determine, in its sole discretion, the upfront fee to paid for the AWS Reserved Instance, and (ii) Amazon will charge to Customer a service fee of twelve percent (12%) of the total upfront price of the applicable AWS Reserved Instance, which will be deducted by Amazon at the time payment is made for the successful transfer of the AWS Reserved Instance from Customer to the applicable Third Party Purchaser.

  1. Additional Terms.

3.1        Compliance. Customer has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Exhibit A.

3.2        Indemnification. Customer shall indemnify, defend and hold harmless the applicable Third Party Purchaser and its officers, directors, employees, agents, affiliates, successors and permitted assigns against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, incurred or suffered by the Third Party Purchaser relating to any claim arising out of or occurring in connection with (i) the AWS Reserved Instance purchased by the Third Party Purchaser from Customer, (ii) Customer’s gross negligence or willful misconduct, or (iii) breach of the terms and conditions set forth in this Exhibit A. Customer shall not enter into any settlement without Company’s prior written consent.

3.3        Representations and Warranties. Customer represents and warrants that: (i) the sale of the AWS Reserved Instance to a Third Party Purchaser will not violate, conflict with, or cause a default under (a) its charter documents or bylaws or (b) any agreement, lease, instrument or other contract to which Customer is a party or by which it is bound; (ii) it has all rights, licenses, permits, qualifications and consents necessary to perform its obligations in this Exhibit A; (iii) the AWS Reserved Instance will be free and clear of all liens, security interests, or other encumbrances; (iv) the registration agreement for the AWS Reserved Instance between Customer and Amazon is in full force and effect and all associated fees are paid in full; (v) Customer has at all times been and remains in full compliance with the terms and conditions of such registration agreement; and (vi) Customer has not taken any action or entered into any agreement for Customer to, or requiring Company to, assign, transfer, license, or grant to any other person or entity the right to use the AWS Reserved Instance or that otherwise encumbers the AWS Reserved Instance.

3.4        Disclaimer. Company makes no warranties, whether express, implied, or statutory regarding or relating to the Program or any materials or services furnished or provided to Customer under this Exhibit A.  COMPANY HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PROGRAM AND ALL OTHER MATERIALS AND SERVICES PROVIDED WITH RESPECT TO THE PROGRAM, AND WITH RESPECT TO THE USE OF ANY OF THE FOREGOING.