Introduction

‍Welcome to Jupiter Intelligence, Inc.! Jupiter develops and provides analytics and insights regarding specified climate perils (“Jupiter Analytics”) through its cloud-based software platform (the “SaaS Services”) to help its customers understand and plan for the impact of climate change in certain individual physical locations identified by a single latitude/longitude.  Jupiter Analytics and the Platform Services are referred to below, collectively, as the “Platform Services”. 

Partner provides consultancy services and wishes to use the Platform Services for the benefit of its end clients (each, an “End Client”), pursuant to the terms and conditions of this Agreement.  

Jupiter is willing to provide the Platform Services for the locations and purposes set forth in the Partner Order for the benefit of End Clients.

In consideration of the foregoing, the parties hereby agree as follows: 

Agreement

In consideration of the foregoing, the parties hereby agree as follows: 

1. Agreement Structure.   

1.1 Master Agreement.  This Agreement is structured as a master agreement, providing the general terms and conditions applicable to Partner’s access to and use of the Platform Services and related professional services (“Professional Services”).  The specific terms and conditions for each order for the Platform Services will be further described in a written order (each, an “Partner Order”).  A description of any Professional Services ordered by Partner and related terms and conditions will be further described in a written Statement of Work or “SOW.”  Each Partner Order and each SOW will be deemed governed by this Agreement automatically.  The Platform Services and Professional Services are referred to collectively below as the “Jupiter Services.”  

1.2 Partner Affiliates.  Partner’s Affiliates may order Jupiter Services under this Agreement pursuant to a Partner Order or SOW signed by a representative of the Affiliate and Jupiter.  Each such Partner Order and SOW will be deemed governed by this Agreement automatically, as if the applicable Affiliate had executed this Agreement as “Partner” on its own behalf.  “Affiliate” means a party that controls, is controlled by or is under common control with a party to this Agreement.  

2. Services. 

2.1 Jupiter Services. 

(a) Provision of Jupiter Analytics. Jupiter will provide the Jupiter Analytics in accordance with the terms of this Agreement and the applicable Partner Order.  

(b) SaaS Services.  Jupiter will provide the SaaS Services in accordance with its technical documentation and user guide, including all reasonable written instructions provided by Jupiter (the “Documentation”). Additionally, Jupiter will provide the service levels and support in connection with Partner’s use of the Platform Services pursuant to the Service Level Addendum and Support Terms attached as Exhibit A. 

(c) Professional Services.  Jupiter will provide any mutually agreed Professional Services in accordance with the terms of this Agreement and the applicable SOW.  Unless otherwise expressly stated in the applicable SOW, all analytics provided to Partner under any SOW will be deemed “Licensed Analytics” for all purposes of this Agreement. All Professional Services will be deemed accepted by Partner on delivery unless otherwise agreed in the applicable SOW. Any changes to the terms of a mutually agreed SOW must be agreed in writing by both parties.

(d) Authorized Use. Partner will ensure that Partner’s account information is accurate and complete and will update such information during the term of the Agreement as needed to maintain accuracy and completeness.  Partner may give access to the Platform Services only to its employees, independent contractors, consultants and agents (and those of its Affiliates) who are working in furtherance of the licensed uses described in Section 2.3 (License Grants) (“Authorized Users”).  Partner will identify each Authorized User given access to the Platform Services and will provide such information to Jupiter upon Jupiter’s reasonable request. Partner will ensure that Authorized Users do not share credentials and acknowledges that apparent sharing of access credentials as reasonably determined by Jupiter may result in individual accounts losing access to the Platform Services.  Partner will be solely responsible for all use of the Platform Services under its account, including the acts and omissions of any Authorized Users.  Partner will protect its account against any unauthorized access and will notify Jupiter immediately if Partner becomes aware of any unauthorized use, disclosure or other compromise of Partner’s account. Partner will use the Jupiter Services solely in accordance with the terms of this Agreement.  

2.2 Licensing Definitions. 

“Derived Insights” means insights created by combining Licensed Analytics with other non-Jupiter analytics to create new sets of insights or analytics where Raw Analytics is not separable or discernable from the new data set.

“Licensed Analytics” means, collectively, the Raw Analytics and the Visualizations.

“Licensed Location” means the individual physical location set forth in the Partner Order which is identified by Jupiter by a single latitude/longitude (for which location Jupiter has developed Jupiter Analytics concerning specified climate perils).  

“Raw Analytics” means, collectively, Jupiter Analytics’ raw elements and risk scores (both individual and aggregate) that pertain to a specified Location.

Visualizations” means, collectively, the graphical representations of the Raw Analytics.  

2.3 License Grants.    Except as expressly granted below in Section 2, Jupiter reserves all rights, title and interest in and to the Jupiter Analytics and the SaaS Services. The licenses granted below are subject to the terms of this Agreement, including any Limitations set forth in the Partner Order.

(a) Internal Use License.  Jupiter hereby grants Partner a limited, non-exclusive, non-transferable, license to access Licensed Analytics through the SaaS Services during any active subscription term, and to use the Licensed Analytics internally on a perpetual basis solely in connection with the applicable specific engagements with its End Clients (each, an “Engagement”), identified in the Partner Reporting; provided that such access and use of the Licensed Analytics are limited to the quantity of Licensed Locations and Authorized Users, and other conditions set forth in the Partner Order.  

(b) Disclosure License.  Jupiter hereby grants Partner a limited, non-exclusive, non-transferable, perpetual license to (i) disclose the Licensed Analytics to disclose Raw Analytics, provided that the cumulative Raw Analytics disclosed by Partner does not exceed 10% of the Raw Analytics provided to Partner under the applicable Partner Order; and (ii) to sublicense to the End Client the right to  use and disclose such Licensed Analytics; provided that, where End Client will receive or disclose any Raw Analytics, End Client has executed the Confidentiality Acknowledgment in the form described in Section 4.6 (Confidentiality Acknowledgements).

(c) Derived Insights License. Jupiter hereby grants Partner a limited, non-exclusive, non-transferable, non-sublicensable, perpetual license to the use Licensed Analytics (i) to create Derived Insights and on behalf of an End Client; (ii) to use and disclose the Derived Insights in its applicable deliverables to the End Clients; and (iii) to permit the End Client to use and disclose the Derived Analytics as determined by Partner. 

(d) Jupiter Trademark License. Subject to the terms and conditions of this Agreement and the applicable Partner Order, Jupiter hereby grants Partner a limited, non-exclusive, non-transferable, non-sublicensable, perpetual license to use Jupiter’s trademarks and service marks (each, a “Jupiter Mark”) solely as needed to perform any attribution requirements set forth in the applicable Partner Order. Where the Jupiter Marks used consist of logos or graphics, such use will be in accordance with those trademark guidelines provided by Jupiter to Partner.  Partner agrees and acknowledges that all use of the Jupiter Marks will insure to the benefit of Jupiter. 

2.4 Notification of Non-Compliance.  In the event Partner becomes aware of any non-compliance with the licensing terms set forth in Section 2.3 (License Grants), Partner will promptly notify Jupiter and the parties will work together to address the non-compliance, including, if applicable, negotiation of additional Partner Orders to address such non-compliant activities. 

2.5 Service Feedback.  Notwithstanding any provision in this Agreement to the contrary, Jupiter may use, develop and implement any suggestions or other feedback concerning the Jupiter Services provided by Partner (including by any of its Affiliates and Authorized Users (collectively, “Feedback”)) in connection with the development, operation, marketing and sale of the Jupiter Services, in its discretion and with no compensation to any person providing Feedback.  Partner acknowledges and agrees that Jupiter will own all improvements, modifications and other Jupiter Services developed by Jupiter based on Feedback.

3. Reporting and Payment.  

3.1 Reporting. Partner will purchase Licensed Locations in advance of their use in connection with Engagements. To allow the parties to track the use of Licensed Locations across Engagements, Partner will provide quarterly reporting to Jupiter in connection with each Partner Order, in a form and format to be reasonably agreed by the parties and attached to the Partner Order (the “Partner Reporting”). The Partner Reporting will include: (i) a list of all applicable Engagements; (ii) the use cases for each Engagement, (iii) the cumulative number of Licensed Locations used by Partner for each Engagement during the reporting period; and (iv) confirmation of Partner’s compliance with the terms of Section 4.6 (Confidentiality Acknowledgments).  Partner may use a Licensed Location for more than one Engagement as long as Partner includes the Licensed Location in the Licensed Location count for each of the applicable Engagements.  Except as expressly provided in this paragraph, Partner is not entitled to use any Licensed Location in connection with more than one Engagement or for any other purpose without Jupiter’s prior written consent (the “Single Engagement Limitation”).  

3.2 Fees and Payment Terms. Partner will pay the fees further described in each Partner Order or SOW as applicable (the “Fees”).  All Fees are in US Dollars, non-refundable and are payable net thirty days from the applicable invoice date.  

3.3 Interest and Collection. Jupiter will notify Partner in writing in the event Partner fails to pay any amount due in accordance with the terms of this Section 3.  If any undisputed amount due to Jupiter is not paid within fourteen days of such notice, then, until such amounts are paid in full, Jupiter may charge interest on any unpaid amount due at the rate of one percent (1%) per month, or at the maximum rate permitted by applicable law, whichever is lower, from the date such payment was due until the date it is paid. In the event Jupiter pursues collection of any overdue Fees payable hereunder, Partner will reimburse all reasonable third-party costs and fees incurred by Jupiter in connection with those collection activities.

3.4 Taxes.  The Fees do not include any local, state, federal, withholding, VAT or other indirect taxes, levies or duties of any nature.  Partner is responsible for paying any such taxes, excluding taxes based on Jupiter’s net income.   

4. Confidentiality and Confidentiality Acknowledgement

4.1 Definitions.  “Confidential Information” means information provided to the receiving party (“Receiving Party”) that is designated by the disclosing party (“Disclosing Party”) as “confidential” or “proprietary” or that a reasonable person would understand to be confidential given the nature of the information and the circumstances of the disclosure. Partner’s Confidential Information includes the list of Locations retrieved by Partner through the Platform Services (collectively, the “Partner Information”). Jupiter’s Confidential Information includes the Jupiter Analytics.  “Confidential Information” does not include information that: (a) is or becomes generally known to the public through no fault of the Receiving Party; (b) is in the Receiving Party’s possession prior to receipt from the Disclosing Party; (c) is acquired by the Receiving Party from a third party without breach of a confidentiality obligation; (d) is independently developed by Receiving Party without reference to the Disclosing Party’s Confidential Information; or (e) is approved in writing for disclosure by the Disclosing Party.  

4.2 Confidentiality Obligations. The receiving Party will use and disclose Confidential Information solely as contemplated by this Agreement.  Receiving Party will disclose Confidential Information only on a need-to-know basis and only to its employees, contractors, advisors, Authorized Users or End Clients who are bound by obligations of confidentiality at least as strict as those contained in this Section.  Receiving Party will use reasonable care to protect the Disclosing Party’s Confidential Information and to prevent unauthorized disclosure of Confidential Information. Confidential Information is and will remain the exclusive property of the Disclosing Party.  Subject to Section 2.3 (License Grants), Receiving Party will, upon written request, destroy all copies of the Disclosing Party’s Confidential Information that are in its possession or control other than Confidential Information that the Receiving Party has a legal obligation to maintain or those copies maintained in system back-ups in the ordinary course of business. 

4.3 Mandated Disclosures.  In the event that Receiving Party is required by applicable law to make any disclosure of any of the Confidential Information of Disclosing Party, Receiving Party will, to the extent allowed by law, first give written notice of such requirement to Disclosing Party to allow Disclosing Party a reasonable opportunity to protect its interests in the Confidential Information.  In such cases, the Receiving Party will provide full cooperation and assistance to the Disclosing Party in seeking to obtain such protection, at the Disclosing Party’s expense.  

4.4 Security. Each party will maintain reasonable and appropriate administrative, technical, organizational and physical security measures designed to protect Partner Information and Jupiter Analytics respectively, against unauthorized access, disclosure and loss.  Each party will regularly monitor compliance with its security measures and will ensure that anyone given access to the other party’s Confidential Information will use such information only as authorized by this Agreement and will not share such information or otherwise violate the terms of this Agreement.  Each party will maintain reasonable and appropriate security incident response policies and procedures for responding to any actual or reasonably suspected unauthorized access, disclosure or loss of Partner Information or Jupiter Analytics, respectively (each, a “Data Security Incident”). Each party agrees to notify the other party without undue delay (no more than forty-eight (48) hours following discovery) of any Data Security Incident and will take all necessary actions to prevent, contain and mitigate the impact of the Data Security Incident. Each party agrees to keep the other party fully informed of the underlying facts pertaining to the Data Security Incident and the party’s response, as they develop. 

4.5 Confidentiality Acknowledgments.  

(a) Jupiter goes to special lengths to protect its Raw Analytics as a trade secret.  As such, for each Engagement in which Partner expects to include Raw Analytics in the End Client Deliverable(s), Partner will obtain a written commitment from the applicable End Client (each, a “Confidentiality Acknowledgment”) as described in this Section and will enforce such Confidentiality Acknowledgments using the same level of effort as that it would use to protect its own confidential information and trade secrets.  The Confidentiality Acknowledgment will: (i) require that the End Client protect the confidentiality of the Raw Analytics; (ii) limit the End Client’s right to publish Raw Analytics to a total of up to 10% of the Raw Analytics used by Partner for the applicable Engagement; (iii) otherwise limit End Client’s use of Raw Analytics to End Client’s internal business purposes only; and (iv) make Jupiter an intended third-party beneficiary of the Confidentiality Acknowledgment.  

(b) Additionally, the Confidentiality Acknowledgment will specify that the End Client will not: (1) use, copy, modify, distribute or otherwise transfer, publish or display any Raw Analytics or make Raw Analytics available in any manner to any third party, except as expressly permitted under the Confidentiality Acknowledgment; (2) include any Raw Analytics in any service bureau or outsourcing offering or use any other method to share or resell any Raw Analytics; or (3) attempt to reverse engineer Jupiter’s methodologies or other trade secrets from the Raw Analytics.  

(c) Partner will obtain End Client’s consent to a Confidentiality Acknowledgment as soon as reasonably practicable and in every event prior to disclosing any Raw Analytics to the End Client. For clarity, Partner will not be required to obtain a Confidentiality Acknowledgement where Partner will disclose only Visualizations or Derived Analytics (as defined below) to the End Client.

5. Restrictions.  Partner will not: (a) use Licensed Analytics in any manner relating to near-term or real-time emergency management or planning; (b) use any portion of the Jupiter Services or any Jupiter Mark in any manner other than as expressly permitted by this Agreement; (c) make any portion of the Jupiter Services available to any other party other than as expressly permitted by this Agreement; (d) use any portion of the Jupiter Services for the benefit of any party other than the applicable End Client; (e) violate Section 2.3 (Licenses), including but not limited to copying, modifying, distributing or otherwise transferring, publishing or displaying any Jupiter Analytics, except as expressly permitted under Section 2.3 (License Grants); (f) fail to protect Jupiter Analytics as described in this Agreement; (g) include any Jupiter Analytics in any service bureau or outsourcing offering or use any other method to share or resell any Jupiter Analytics; (h) attempt to gain unauthorized access to any portion of the Jupiter Services or its systems or networks or use any portion of the Jupiter Services in any way that circumvents a contractual usage limit; (i) attempt to reverse engineer Jupiter’s methodologies or other trade secrets from the Jupiter Analytics; or (j) use or access any portion of the Jupiter Services in any way in support of building a competitive product or service.    

6. Indemnification  

6.1 By Jupiter.  

(a) General.  Jupiter will defend, indemnify and hold Partner harmless against any third-party claim, demand, suit, investigation or proceeding (each, a “Claim”) made or brought against Partner relating to or arising out of: (i) an allegation that the provision of the Licensed Analytics or use of the Platform Services as permitted hereunder infringes or misappropriates a third-party copyright, trade secret, trademark or patent; or (ii) Jupiter’s gross negligence or willful misconduct.  Jupiter will pay all costs, reasonable legal fees and any settlement amounts agreed to be paid by Jupiter or damages awarded against Partner in connection with any such Claim.  

(b) Infringement Options.  If the use of the Jupiter Services (or any portion of the Jupiter Services) by Partner has become, or in Jupiter’s opinion is likely to become, the subject of any Claim, Jupiter may at its option and expense: (i) procure for Partner the right to continue using the Jupiter Services as set forth herein; (ii) modify the Jupiter Services to make it non-infringing; or (iii) if the foregoing options are not reasonably practicable, terminate this Agreement and refund Partner any unused pre-paid Fees.

(c) Limitations.  Jupiter will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by: (i) use of the Jupiter Services by Partner that is not in accordance with the terms of this Agreement; or (ii) the combination, operation or use of the Jupiter Services with other applications, products or services where the allegedly infringing aspect of the Jupiter Services would not by itself be infringing.  

6.2 By Partner.  Subject to Jupiter’s obligations under Section 6.1 (By Jupiter), Partner will defend, indemnify and hold harmless Jupiter against any Claim relating to or arising out of: (a) Partner’s use or disclosure of any Licensed Analytics or Derived Insights, including any breach of Section 5(a) above and any statements made in connection with any such disclosure; or (b) Partner’s gross negligence or willful misconduct.  Partner will pay all costs, reasonable legal fees and any settlement amounts agreed to be paid by Partner or damages awarded against Jupiter in connection with any such Claim.  

6.3 Obligations.  A party entitled to indemnification under this Agreement (the “Indemnified Party”) will: (a) provide prompt written notice of the applicable Claim to the other party (the “Indemnifying Party”); (b) provide the Indemnifying Party with sole control of the applicable defense and settlement; and (c) cooperate as requested by the Indemnifying Party, at the Indemnifying Party’s expense.  The Indemnifying Party will not agree to any settlement unless such settlement includes a full release of the applicable Claim against the Indemnified Party.  

7. Warranty and Disclaimer 

Jupiter represents and warrants that the Platform Services will substantially conform with the Services Level Agreement attached hereto as Exhibit A (“SLA”), Jupiter Documents (as listed in the Partner Order) and industry standards.  Except as expressly provided in this Agreement, the Jupiter Services and all related products and activities are provided “AS IS,” “AS AVAILABLE” and “WITH ALL FAULTS.” Any promises contained in this Agreement are in lieu of all other warranties, representations or conditions, whether express or implied, including implied warranties of merchantability, fitness for a particular purpose and non-infringement, or any other implied warranties arising from statute, course of dealing or course of performance, all of which are expressly disclaimed. Specifically, Partner acknowledges that Jupiter Analytics consists of projections with respect to which there are inherent uncertainties. The provision of Jupiter Analytics hereunder will not be deemed a representation, warranty or guarantee of any outcome. Partner agrees that Partner has full responsibility for making its own decisions, including, as between the parties, responsibility for any damages resulting from those decisions. Jupiter does not represent that the Jupiter Services will be uninterrupted or error free or that the Jupiter Services will meet Partner’s requirements. Partner acknowledges and agrees that, as a SaaS-based service, the features, functions and interfaces of the Platform Services may change over time provided that such changes will not materially degrade the operation or functionality of the Platform Services.  

8. Limitation of Liability 

Except for breach of Section 4 (Confidentiality), Section 5 (Restrictions), or any amounts payable to a third party under Section 6 (Indemnification), in no event, whether in tort, contract, or otherwise, will (i) either party be liable to the other party for any indirect, special, incidental, consequential or punitive damages of any character, including damages for loss of goodwill, lost profits, lost sales or business, computer failure or malfunction, lost data or any and all other similar damages or losses, even if such party knew or should have known of the possibility of such damages; and (ii) either party’s liability under this Agreement exceed the amounts paid by Partner in the twelve-month period immediately prior to the initial liability claim. 

Notwithstanding anything to the contrary, nothing in this Section is intended to limit either party’s liability in the event of gross negligence, intentional misconduct, or any misappropriation or infringement of the other party’s intellectual property rights.

The provisions of this Section allocate the risks under this Agreement between the parties, and the parties have relied on the limitations set forth in this Section in determining whether to enter into this Agreement. 

9. Term and Termination  

9.1 Term.  The term of this Agreement will commence on the Effective Date and will continue as long as a Partner Order or SOW is in progress. The subscription term stated in each Partner Order will renew automatically for the same duration specified in the applicable Partner Order, unless either party gives the other party written notice of its intent not to renew the subscription at least sixty days prior to the end of the then-current term.    

9.2 Termination.  Either party may terminate this Agreement immediately on giving notice in writing to the other party if the other party commits any material breach of any term of this Agreement and has not cured such breach within thirty days of its receipt of written notice of the breach.  In addition, either party may terminate this Agreement immediately on giving notice in writing to the other party if the other party files for bankruptcy; becomes or is declared insolvent, or is the subject of any proceedings related to its liquidation, insolvency or the appointment of a receiver or similar officer for it; makes an assignment for the benefit of all or substantially all of its creditors; or enters into an agreement for the cancellation, extension, or readjustment of substantially all of its obligations.  

9.3 Suspension.  Jupiter may suspend access to the Platform Services in the event of any non-payment of Fees or other breach of this Agreement that is not cured within thirty (30) days of delivery of written notice of the applicable breach to Partner.  Additionally, notwithstanding any provision herein to the contrary, in the event of any activity by Partner or any of its users that has (or in Jupiter’s reasonable assessment is likely to have) an adverse effect on the operation of the Platform Services, Jupiter may temporarily suspend access to the Platform Services. In such an event, Jupiter will notify Partner as soon as possible and will work with Partner in good faith to remedy the cause of the adverse effect.  

9.4 Survival. Any perpetual licenses contained in Section 2.3 will survive any expiration of the applicable Partner Order; provided that, Partner continues to comply with the terms of the license and the terms of Section 5 (Restrictions). In addition, the provisions of this Section 9.4 and the following Sections will survive any termination of this Agreement: Section 3 (Payment) (to the extent accrued prior to termination or expiration), Section 4 (Confidentiality), Section 5 (Restrictions), Section 6 (Indemnification), Section 7 (Disclaimer), Section 8 (Limitation of Liability) and Section 10 (General).  

10. General

10.1 Marketing. Jupiter may use Partner’s name and logo for promotional purposes on Jupiter’s website and marketing materials, subject to the terms of any written trademark guidelines provided to Jupiter by Partner.  Partner may elect to terminate the use right described in this Section at any time by sending written notice of its election to Jupiter.  

10.2 Compliance with Laws. Each party will comply with all applicable laws, rules and regulations, including laws pertaining to the export of technology, in connection with its activities under this Agreement.  

10.3 Relationship.  Partner acknowledges that there is no advisory relationship created under this Agreement and that none of the Jupiter Services will be construed as the provision of any kind of advice. Partner will obtain all advice from its own business, financial or legal advisors.

10.4 Limitation.  Partner’s rights under this Agreement are limited to those expressly stated in herein.  Except as expressly provided in this Agreement, nothing in this Agreement confers any right, title or interest in or to Jupiter’s intellectual property, including its patents, copyrights and trade secrets all of which Jupiter expressly reserves. 

10.5 Governing Law.  This Agreement is governed by the laws of the State of Delaware, United States, without regard to its conflict of law principles.  

10.6 Arbitration.  All disputes related to or arising out of this Agreement will be resolved exclusively by binding arbitration under Commercial Arbitration Rules of the American Arbitration Association (“AAA”).  Either party may send a notice (an “Arbitration Notice”) to the other party of its intention to file a case with the AAA under this Section.  The arbitration will be conducted in San Mateo, California by a single arbitrator knowledgeable in trade secret, copyright and the commercial aspects of SaaS-based services.  The parties will mutually appoint an arbitrator within thirty days of the Arbitration Notice.  If the parties are unable to agree on an arbitrator, then the AAA will appoint an arbitrator who meets the stated knowledge requirements.  Prior to the hearing, each party will have the right to take up to four evidentiary depositions, and exchange one set of document production requests and one set of not more than twenty interrogatories.  The arbitrator will provide detailed written explanations to the parties to support their award and will grant to the prevailing party the costs and fees (including legal, accounting and expert witness fees) incurred by such party. The arbitration award will be final and binding and may be enforced in any court of competent jurisdiction in keeping with the 1958 United Nations Convention of the Recognition and Enforcement of Foreign Arbitral Awards.

10.7 Equitable Relief.  Each party acknowledges that a breach by it of the terms of Section 4 (Confidentiality) or Section 5 (Restrictions) would cause irreparable harm to the affected party for which the affected party could not be adequately compensated by money damages.  Accordingly, each party agrees that, in addition to all other remedies available to the affected party in an action at law, in the event of any breach or threatened breach of Section 4 (Confidentiality) or Section 5 (Restrictions), the affected party will be entitled to seek temporary and permanent injunctive relief, including specific performance of the terms of this Agreement from any court of competent jurisdiction.

10.8 Notices.  Marketing and business-related notices between the parties may be delivered by email. All legal (e.g., dispute-related) notices relating to this Agreement must be in writing and sent to each party its then-current primary place of business or such other address provided by the recipient.  Each legal notice provided under this Agreement must be sent using a major overnight delivery service or mailed in a manner that requires signature by the recipient.  On the same day that a party initiates a legal or dispute related notice, the party will also send a courtesy copy of the notice by email.  

10.9 Force Majeure.  Neither party will be liable under this Agreement for non-performance caused by events or conditions beyond that party's control if the party makes reasonable efforts to perform.

10.10 No Assignment.  Neither party may assign this Agreement in whole or in part except, upon written notice to the other party, to (a) an Affiliate or (b) a successor in interest in the event of a merger or sale of such party (including sale of substantially all of the assets of such party).  Any assignment in violation of this subsection will be deemed null and void.  

10.11 Entire Agreement.  This Agreement together with any mutually agreed Addenda constitute the entire agreement between the parties concerning the subject matter herein and supersede any and all prior communications and agreements whether written or oral concerning the subject matter hereof.  Each party hereby acknowledges that no reliance is placed on any representation made but not referenced in this Agreement.  No purchase order, Partner’s terms, or other text that purport to modify or supplement the printed text of this Agreement will add to or vary the terms of this Agreement. 

10.12 Interpretation.  This Agreement has been negotiated by the parties, each of which is represented by legal counsel, and will not be construed in favor of the original non-drafting party.  The term “including” as used through this Agreement is intended to mean “including without limitation” in each instance.    

10.13 Modifications; Severability.  Except as expressly provided herein, any modification to this Agreement must be made in writing and signed by an authorized representative of each party.  If any provision of this Agreement is held to be unenforceable, then such provision will be reformed to the extent necessary to make it enforceable, and such holding will not impair the enforceability of the remaining provisions.  

10.14 Waiver.  The failure by a party to exercise any right hereunder or to enforce strict performance of any provision of this Agreement will not waive such party's right to exercise that or any other right in the future.  

Exhibit A

Service Level Addendum (“SLA”) and Support Terms

A. Availability SLA

1. Availability Promise.  Jupiter will use commercially reasonable efforts to ensure that the Platform Services have a Monthly Percentage Uptime of at least 99.9% (“Availability Promise”).  Subject to the terms of this SLA, if the Monthly Percentage Uptime in a given month is less than 99.9%, then Partner will be entitled to service credits as further described in Section A2 below. 

“Monthly Percentage Uptime” is a percentage calculated by subtracting the total number of minutes of Downtime in a calendar month from the total number of minutes in that calendar month and dividing that result by the total number of minutes in the applicable calendar month. “Downtime” means the number of minutes in a calendar month when the Platform Services are unavailable for use, excluding Emergency Downtime, Scheduled Downtime, and the circumstances described in Section C (Exclusions) below. “Emergency Downtime” means unavailability due to remediation of a vulnerability that Jupiter reasonably determines requires immediate attention. “Scheduled Downtime” means unavailability resulting from scheduled maintenance of the Platform Services, performed in windows of 10 minutes or less and not to exceed 4 hours in a given calendar month.    

2. Service Credit.  Subject to the terms of this Section A (SLA), if the Monthly Percentage Uptime is less than the Availability Promise in a given calendar month, then Partner may request a credit (the “Service Credit”) calculated as described in the table below.  The Service Credit is calculated as a percentage of the applicable pro-rated Fees for the affected calendar month.  

In order to receive any Service Credit, Partner must request each Service Credit within thirty days of the applicable failure following the instructions provided by Jupiter from time to time.  Each Service Credit reported as described in this paragraph will be applied to future, unpaid Fees. If Partner does not incur future Fees, then promptly following expiration or termination of the applicable Partner Order, Jupiter will pay Partner any outstanding credits payable under this Section A2.

3. Sole and Exclusive Remedies.  Notwithstanding any provision to the contrary in any agreement between the parties, the remedies provided in Section A2 and A3 above will be Partner’s sole and exclusive remedies, and Jupiter’s sole and exclusive obligation, in connection with any failure to meet the Availability Promise. 

B. Support Services

1. Support Services.  Jupiter will provide basic support services and Error (as defined below) correction for each of the Platform Services as further described in this Section B.  Any additional support services will be agreed to by the parties and described in the applicable Partner Order.  

2. Support Hours and Requests.  Support for each Platform Services will be provided during the Business Hours described below. Partner will submit support requests in the manner communicated by Jupiter to Partner from time to time. 

3. Error Correction.  

(a) Errors. “Error” means a failure of the Platform Services to operate in accordance with its Documentation.  Each Error will be assigned one of the following Severity Levels, as reasonably determined by Jupiter:  

“Critical Severity Level” means that the Platform Services are inoperable for users.

“High Severity Level” means that the operation of Platform Services or a significant function of the Platform Services are severely limited or degraded and no work around is available. 

“Medium Severity Level” means a moderate loss of functionality or performance of the Platform Services but the major components of the Platform Services remain useable.

“Low Severity Level” means there is no material impact on operation of the Platform Services; “Low Severity Level” includes product feature requests.

(b) Support Response.  Jupiter will respond to Errors in the operation of the Platform Services as further described in the table below.  Jupiter may temporarily resolve Errors by providing a reasonable workaround.

C. Exclusions

Jupiter will have no obligation under this Availability SLA and Support Terms or any other agreement with Partner for any “Downtime” or “Errors” caused by: (a) hardware, software or services not provided by Jupiter; (b) Partner’s use of the Platform Services in a manner not in accordance with its Documentation or Jupiter’s reasonable instructions; or (c) by other factors outside of Jupiter’s reasonable control, including without limitation, any network or device failure external to data centers operated by Jupiter or its vendors, natural disasters, war, acts of terrorism or government action.