1. This Cubist Customer Agreement (this “Agreement”) is entered into by and between Cubist, Inc., a Delaware corporation (“Cubist”), and Customer, and shall apply to Customer's use of Cubist's SaaS based key management platform (the “Cubist Product”) ordered by Customer pursuant to one or more ordering documents entered into between Customer and Cubist or online orders made by Customer that set forth the specific Cubist Product and pricing thereof, and the applicable subscription term thereof ("Order Form").  This Agreement and such Order Forms, which are hereby incorporated into, supplement and form a part of this Agreement, represent the parties' entire understanding regarding the Cubist Product and shall control over any different or additional terms of any purchase order or other non-Cubist ordering document, and no terms included in any such purchase order or other non-Cubist ordering document shall apply to the Cubist Product. In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form shall control.  “Customer” means the company or other legal entity that entered into an Order Form.  You represent that you have the authority to bind Customer to the terms of this Agreement. If you do not agree to the terms of this Agreement, or if you are not authorized to accept this Agreement on behalf of your organization or entity, do not access or use any of the Cubist Product. ‍

2. Definitions

2.1. The following terms, when used in this Agreement will have the following meanings:

“Affiliates” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists.  For the purposes of this definition, “Control” means beneficial ownership of 50% or more of the voting power or equity in an entity.

‍“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure.  However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.‍

“Documentation” means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by Cubist for the Cubist Product.

‍“Non-Cubist Product” means a third party or Customer web-based, mobile, offline or other software application that integrates with the Cubist Product (other than third party data hosting services used by Cubist).  For clarity, the Cubist Product excludes Non-Cubist Products.

3. Cubist Product

3.1. Provision of Cubist Product.  Subject to the terms and conditions of this Agreement, Cubist will make the Cubist Product available to Customer pursuant to this Agreement and the applicable Order Form, and hereby grants Customer a non-exclusive right to access and use the Cubist Product for its internal business purposes.

3.2. Data Security.  Cubist will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Customer data uploaded by or on behalf of Customer to the Cubist Product (“Customer Data”); (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data.

3.3. Customer Responsibilities

(a) Customer acknowledges that Cubist’s provision of the Cubist Product is dependent on Customer providing all reasonably required cooperation (including the prompt provision of access to Customer’s systems, personnel, cooperation and materials as reasonably required and any other access as may be specified in the applicable Order Form), and Customer will provide all such cooperation in a diligent and timely manner.

(b) Customer will (i) be responsible for all use of the Cubist Product under its account, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Cubist Product and notify Cubist promptly of any such unauthorized access or use or any other known or suspected breach of security or misuse of the Cubist Product and (iii) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the Cubist Product, including as set forth in the Documentation.  Customer will be solely responsible for its failure to maintain such equipment, software and services, and Cubist will have no liability for such failure (including under any service level agreement).  

(c) Customer will not use the Cubist Product to transmit or provide to Cubist any medical information of any nature, or any sensitive personal data.

3.4. Affiliates.  Any Affiliate of Customer will have the right to enter into an Order Form executed by such Affiliate and Cubist and this Agreement will apply to each such Order Form as if such Affiliate were a signatory to this Agreement.  With respect to such Order Forms, such Affiliate becomes a party to this Agreement and references to Customer in this Agreement are deemed to be references to such Affiliate.  Each Order Form is a separate obligation of the Customer entity that executes such Order Form, and no other Customer entity has any liability or obligation under such Order Form.

4. Fees

4.1. Fees. Customer will pay Cubist the fees set forth in the applicable Order Form.  Customer shall pay those amounts due and not disputed in good faith within thirty (30) days of the date of receipt of the applicable invoice, unless a specific date for payment is set forth in such Order Form, in which case payment will be due on the date specified.  Except as otherwise specified herein or in any applicable Order Form, (a) fees are quoted and payable in United States dollars and (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable.

4.2. Late Payment.  Cubist may suspend access to the Cubist Product immediately upon notice if Customer fails to pay any amounts hereunder at least thirty (30) days past the applicable due date.  

4.3. Taxes.  All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”).  Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Cubist.  Customer will not withhold any Taxes from any amounts due to Cubist.

5. Proprietary Rights

5.1. Proprietary Rights.  As between the parties, Cubist exclusively owns all right, title and interest in and to the Cubist Product, System Data and Cubist’s Confidential Information, and Customer exclusively owns all right, title and interest in and to the Customer Data, and Customer’s Confidential Information.  “System Data” means data collected by Cubist (including both on and off-chain data) regarding the Cubist Product that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the Cubist Product.

5.2. Feedback.  Customer may from time to time provide Cubist suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Cubist Product.  Cubist will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality.  Cubist will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.

5.3. Product Improvement and Aggregated Statistics. Customer further agrees that Cubist has the right to aggregate, collect and analyze Customer Data and other information relating to the performance of the Cubist Product and shall be free (during and after the term hereof) to (i) use such data and other information to improve Cubist’s products and services, and (ii) disclose such data and other information that does not identify Customer or the personal information of any individual. 

6. Confidentiality; Restrictions

6.1. Confidentiality.  Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder.  However, either party may disclose Confidential Information (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law.  Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers.  Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure.  In the event of actual or threatened breach of the provisions of this Section 5, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.  Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.

6.2. Technology Restrictions.  Customer will not directly or indirectly: (a) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Cubist Product; (b) attempt to probe, scan or test the vulnerability of the Cubist Product, breach the security or authentication measures of the Cubist Product without proper authorization or wilfully render any part of the Cubist Product unusable; (c) use or access the Cubist Product to develop a product or service that is competitive with Cubist’s products or Product or engage in competitive analysis or benchmarking; (d) transfer, distribute, resell, lease, license, or assign the Cubist Product or otherwise offer the Cubist Product on a standalone basis; or (e) otherwise use the Cubist Product in violation of applicable law (including  Export Control and Sanctions Laws, as defined below) or outside the scope expressly permitted hereunder and in the applicable Order Form.  

6.3. Export Controls and Sanctions.  Customer acknowledges that this Agreement and the Cubist Product are subject to U.S. export control and sanctions laws and regulations, including, without limitation, the Export Administration Regulations (15 C.F.R. §§ 730-774) and the laws, statutes, regulations, rules and executive orders administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (collectively, the “Export Control and Sanctions Laws”).  Customer agrees to comply with all Export Control and Sanctions Laws applicable to the Cubist Product and shall not take any action that will cause any party to this Agreement, including Cubist, to violate or be subject to penalty under any Export Control and Sanctions Laws.

(a) Without limiting the foregoing, Customer represents, warrants and covenants that neither Customer, nor any of its Affiliates nor any of their respective directors, officers, employees, shareholders, agents or representatives (i) is, or during the term of this Agreement shall become, a Prohibited Person; (ii) will, directly or indirectly, export, reexport, sell, use, provide or otherwise dispose of the Cubist Product to, in or for the benefit of a Prohibited Person or Sanctioned Jurisdiction; or (iii) otherwise engage in any transaction, act, dealing or practice in any manner that would violate, cause Cubist to violate or expose Cubist to adverse consequences under Export Control and Sanctions Laws.

(b) Customer shall promptly notify Cubist (i) in the event that Customer, any of its Affiliates or any of their respective directors, officers, employees, shareholders, agents or representatives becomes a Prohibited Person; or (ii) of any other changes to or noncompliance with any representation, warranty or covenant provided herein.

(c) If Customer, any of its Affiliates or any of their respective directors, officers, employees, agents or representatives becomes a Prohibited Person at any time during the term of this Agreement, or if performance under this Agreement otherwise becomes unlawful under Export Control and Sanctions Laws, then Cubist may, in its sole discretion, reject any transaction, or cancel or suspend in whole or in part the provision of the Cubist Product under this Agreement, without any liability of Cubist to Customer.

(d) For purposes of this Section 6.3:

(i) “Prohibited Person” means (i) any individual, entity or wallet address that has been determined by competent authority to be the subject or target of any prohibition or restriction under Export Controls and Sanctions Laws; (ii) the government, including any political subdivision, agency or instrumentality thereof, of any Sanctioned Jurisdiction or of Venezuela; (iii) any individual or entity located, organized or residing in any Sanctioned Jurisdiction; (iv) any individual, entity or wallet address that has been identified on the Specially Designated Nationals and Blocked Persons List or Consolidated Sanctions List, or designated on any similar list or order published by the U.S. government or any other applicable governmental authority; and (v) any individual, entity or wallet address owned or controlled by, or that acts for or on behalf of, any of the foregoing; and

(ii) “Sanctioned Jurisdiction” means, at any time, any country, region or territory which is itself the subject or target of comprehensive economic sanctions or embargoes under Export Controls and Sanctions Laws, including without limitation Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine and the so-called Donetsk People’s Republic (DNR) and Luhansk People’s Republic (LNR) regions of Ukraine.

7. Warranty Disclaimer

7.1. Cubist.  THE CUBIST PRODUCT IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND. CUBIST DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS RELATING TO THE CUBIST PLATFORM, WHETHER EXPRESS, IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY REPRESENTATION, WARRANTY, OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT.

7.2. Customer.  Customer warrants that it has all rights necessary to provide any information, data or other materials that it provides hereunder, and to permit Cubist to use the same as contemplated hereunder.

8. Indemnification

8.1. Indemnity by Cubist.  Cubist will defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Cubist Product as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify Customer for any damages finally awarded against Customer (or any settlement approved by Cubist) in connection with any such Claim; provided that (a) Customer will promptly notify Cubist of such Claim, (b) Cubist will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Cubist may not settle any Claim without Customer’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability) and (c) Customer reasonably cooperates with Cubist in connection therewith.  If the use of the Cubist Product by Customer has become, or in Cubist’s opinion is likely to become, the subject of any claim of infringement, Cubist may at its option and expense (i) procure for Customer the right to continue using and receiving the Cubist Product as set forth hereunder; (ii) replace or modify the Cubist Product to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate the applicable Order Form and provide a pro rata refund of any prepaid subscription fees corresponding to the terminated portion of the applicable subscription term.  Cubist will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) compliance with designs, guidelines, plans or specifications provided by Customer; (B) use of the Cubist Product by Customer not in accordance with this Agreement; (C) modification of the Cubist Product by or on behalf of Customer; (D) Customer Confidential Information or (E) the combination, operation or use of the Cubist Product with other products or services where the Cubist Product would not by itself be infringing (clauses (A) through (E), “Excluded Claims”).  This Section states Cubist’s sole and exclusive liability and obligation, and Customer’s exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.

8.2. Indemnification by Customer.  Customer will defend Cubist against any Claim made or brought against Cubist by a third party arising out of the Excluded Claims, and Customer will indemnify Cubist for any damages finally awarded against Cubist (or any settlement approved by Customer) in connection with any such Claim; provided that (a) Cubist will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without Cubist’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Cubist of all liability) and (c) Cubist reasonably cooperates with Customer in connection therewith.  In addition, Customer will indemnify and hold Cubist harmless from any and all claims, costs, expenses or damages incurred from any actual or suspected violation of Export Control and Sanctions Laws in connection with Customer’s purchase, sale or use of the Cubist Product or in the event that Customer breaches any representation, warranty or covenant provided herein.  Customer shall fully cooperate with Cubist in responding to any internal or U.S. government inquiry, investigation or audit concerning Customer’s purchase, sale or use of the Cubist Product.

9. Limitation of Liability

EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, A BREACH OF SECTION 5 OR A PARTY’S INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY AGGREGATE DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

10. Termination

10.1. Term.  The term of this Agreement will commence on the date of the initial Order Form and continue until terminated as set forth below.  The initial term of each Order Form will begin on the start date indicated in such Order Form and will continue for the subscription term set forth therein.  

10.2. Termination.  Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms then in effect.  Each party may also terminate this Agreement or the applicable Order Form upon written notice in the event (a) the other party commits any material breach of this Agreement or the applicable Order Form and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days. 

10.3. Survival.  Upon expiration or termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such expiration or termination will survive, including the License Restrictions and terms and conditions relating to proprietary rights and confidentiality, technology restrictions, disclaimers, indemnification, limitations of liability and termination and the general provisions below. Upon expiration or termination of this Agreement, each party will return or destroy, at the other party’s option, any Confidential Information of such party in the other party’s possession or control.  

11. General

11.1. Publicity.  Customer agrees that Cubist may refer to Customer’s name and trademarks in Cubist’s marketing materials and website; however, Cubist will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email).

11.2. Assignment; Delegation.  Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement.  Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void.  Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.

11.3. Amendment; Waiver.  Cubist reserves the right in its sole discretion and at any time and for any reason to modify these Terms and Conditions. With respect to each Order Form, any modifications to these Terms and Conditions shall become effective upon the date of Customer’s next renewal of such Order Form. It is Customer’s responsibility to review these Terms and Conditions from time to time for any changes or modifications. If Customer does not agree to the modified Terms and Conditions, Customer may provide notice of Customer’s non-renewal at any point prior to the Customer’s next renewal. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default..  Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision.  Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.  The section headings used herein are for convenience only and shall not be given any legal import.

11.4. Relationship.  Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.

11.5. Unenforceability.  If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.

11.6. Governing Law.  This Agreement will be governed by the laws of the State of California, exclusive of its rules governing choice of law and conflict of laws.  This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

11.7. Notices.  Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery.  Notices to the Customer must be sent to the respective address set forth in the signature blocks listed on the Customer’s applicable Order Form, or such other email address provided by Customer when Customer creates its account.  Notices to Cubist must be sent to the following:.

Cubist, Inc., 3911 Cleveland Ave #3054, San Diego, CA 92163, USA

11.8. Entire Agreement.  This Agreement comprises the entire agreement between Customer and Cubist with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written).  No oral or written information or advice given by Cubist, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.

11.9. Force Majeure.  Neither Party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.

11.10. Government Terms.  Cubist provides the Cubist Product, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement.  If Customer is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Cubist Product, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement.  All other use is prohibited and no rights than those provided in this Agreement are conferred. The Cubist Product was developed fully at private expense.

11.11. Interpretation.  For purposes hereof, “including” means “including without limitation”.