ENTERPRISE PRODUCT AND SERVICES LICENSE AGREEMENT

This ENTERPRISE PRODUCT AND SERVICES LICENSE AGREEMENT (“Agreement”) is entered into by and between Denver Technologies, Inc. d/b/a Warp.dev (“Warp”) and the customer identified on the applicable Order (“Customer”), and shall govern Customer’s initial purchase on the Effective Date (set forth on Customer’s initial Order) as well as any future purchases made by Customer that reference this Agreement. If you are accepting this Agreement on behalf of Customer, you represent and warrant that you have the authority to bind Customer to the terms and conditions of this Agreement. All references in this Agreement to the “sale” or “purchase” of any Product or Service shall mean the sale or purchase of a license to such Product or Service. Terms not otherwise defined in the text of this Agreement shall have the meanings ascribed to them in Exhibit A.

General Terms and Conditions

1. Subscriptions; Delivery; Support.

1.1 Ordering Product.

Customer may purchase Subscriptions to Products and Support Services by the parties agreeing to Orders that reference this Agreement. Subscriptions will be for the term agreed to in an applicable Order.

1.2 Delivery.

All Products, Updates and Documentation will be delivered electronically to Customer by giving Customer access to such Products, Updates and Documentation. In the case of a renewal of a Subscription, there is no delivery requirement for such renewal. Renewals shall be deemed Delivered on the first day of the then-current renewal term.

1.3 Support.

Warp will provide technical support (“Support Services”) by email and/or electronic chat from 9:00 a.m. to 5:00 p.m. U.S. Mountain time, excluding weekends and U.S. federal holidays. Warp will use reasonable efforts to respond within one business day to support requests sent to support@warp.dev. Unless otherwise agreed in writing by the parties, all support requests from Customer will be sent by those Customer-designated employees, as agreed by Warp, who have the right to contact Warp via email for technical support and who act as the primary interface between Customer and Warp technical support (“Named Contact(s)”).

2. Ownership of Intellectual Property; License Grant; Trial Services; Restrictions; Feedback.

2.1 Warp Ownership.

Except to the extent licenses are expressly granted hereunder, Warp and its licensors retain all right, title and interest in and to all Intellectual Property Rights in and to the Product, System and Usage Data, Documentation and Services, and to any additional system software, content, organization, graphics, design, compilation, know-how, concepts, methodologies, procedures, and other matters related to Warp’s website. The use, copying, redistribution, or publication by Customer of any part of the website, Product, Documentation or the Services, except as expressly authorized by this Agreement, is prohibited.

2.2 License Grant by Warp.

Subject to and in consideration of timely payment by the Customer of the license fees hereunder, and of Customer’s compliance with the other terms and conditions of this Agreement, Warp hereby grants to the Customer and its Authorized Users, solely during the applicable term specified in an Order, a royalty free, limited, personal, non-exclusive, non-transferable (except as otherwise expressly allowed by this Agreement) license to: (i) access (via the Internet address provided to Customer by Warp), download and use the Product solely from the Sites designated on the Order, for the number of Authorized Users for which Customer has a current Subscription; and (ii) use the Documentation, training materials or other materials supplied by Warp to enable such licensed rights. In addition, to the extent that Warp makes access to Services available via a compatible mobile or desktop device (“Warp Applications”), Warp grants to the Customer and its Authorized Users, solely during the applicable term specified in an Order, a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Warp Applications on one or more mobile or desktop devices owned or leased solely by an Authorized User to exercise the rights granted in this Section, and solely in accordance with this Agreement.

2.3 License Restrictions.

Customer agrees that it (and its Authorized Users) will not without express written permission of Warp: (a) reverse compile, disassemble, decompile or reverse engineer, reproduce, modify, adapt or create derivative works of or from the Services or any part thereof; (b) make the Services or Documentation available to, or use the Services or Documentation for the benefit of, anyone other than Customer; (c) assign, transfer, sell, resell, license, sublicense, distribute, rent or lease the Services or Documentation, or include any Services or Documentation in a service bureau or outsourcing offering; (d) permit direct or indirect access to or use of the Services or Documentation in a way that circumvents any contractual usage limit; (e) reproduce the Services or Documentation or any part, feature, function or user interface thereof (except as expressly otherwise permitted under this Agreement); (f) use any robot, spider, scraper, data mining tool, data gathering or extraction tool, or any other automated means, to access, collect, copy or record the Services; or (g) access or use any Services or Documentation in order to build a competitive product or service. In addition, Customer and its Authorized Users will not (i) access the Services for, or upload to the Cloud Infrastructure, anything unlawful, misleading, malicious or discriminatory; or (ii) perform or attempt to perform any actions that would interfere with the proper working of the Cloud Infrastructure, or prevent access to (or use of) the Cloud Infrastructure by Warp’s other Customers or customers (including but not limited to any form of distributed denial-of-service scheme or over-burdening a targeted server with ping requests, or any device, software or routine that contains viruses, Trojan horses, worms, time bombs, or other computer programming routines that may damage, interfere or attempt to interfere with, or intercept the normal operation of the Cloud Infrastructure).

2.4 Customer Responsibilities.

Customer shall provide accurate, current and complete information required to enable its Authorized Users on the Cloud Infrastructure, and shall maintain the accuracy of such information during the use of the Product and Services. Customer shall require Authorized Users to maintain proper password security, and to keep their accounts confidential. Customer is responsible for the actions of its Authorized Users, of anybody accessing the Cloud Infrastructure using the credentials of any Authorized User (unless such access was due to Warp’s actions), and of any other individuals to whom Customer has given access to the Services. In addition, any individual with administrator-level access to a user account can modify that account’s settings, access and billing information. Warp will not be liable for any losses caused by any unauthorized use of any account, or for any changes to an account, including any user’s inability to access their account or Customer Data, made by any individual with administrator-level access to such account. Customer will, and will cause its Authorized Users to, comply with the applicable acceptable use policy from each third-party large language model or artificial intelligence provider (“LLM Provider”) it uses in connection with the Services, as made available by Warp or such LLM Provider to Customer. Customer shall not, and shall ensure that its Authorized Users do not, transmit to Warp or through the Services any data subject to heightened security requirements by law, regulation or contract (for example, data subject to GLBA, FERPA, COPPA, PCI-DSS or HIPAA and their international equivalents), biometric data, or racial, ethnic, political-opinion or sexual-orientation data (“Customer Excluded Data”). Warp shall have no responsibility or liability for Customer Excluded Data, except that if Customer notifies Warp that it has inadvertently provided Customer Excluded Data, Warp will reasonably cooperate to delete it and will treat it as Customer’s Confidential Information pending deletion.

2.5 Customer Owns its Intellectual Property and Customer Data.

Except to the extent licenses are expressly granted hereunder, Customer retains Intellectual Property Rights in and to: (i) its products and services; and (ii) the Customer Data.

2.6 Data Security and Zero Data Retention.

Warp will maintain a security program that is designed to (i) ensure the security and integrity of Customer Data; (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data. To the extent that Warp processes any Personal Data (as defined in the DPA referenced below) contained in Customer Data that is subject to Data Protection Legislation (as defined in the DPA), on Customer’s behalf, in the provision of the Product, the Data Processing Addendum (“DPA”) currently available at: https://www.warp.dev/data-processing-addendum is hereby deemed part of this Agreement and incorporated herein by reference. In furtherance of the foregoing, and subject to Warp’s ownership of System and Usage Data, Warp shall maintain zero data retention agreements (“ZDR”) with the LLM Providers.Under ZDR, the LLM Providers will not (a) store prompts, inputs, or outputs submitted to them through the Services by Customer or its Authorized Users beyond the period necessary to generate the applicable output; or (b) use such content to train their models.ZDR does not apply to: (1) models that carry LLM Provider-specific data retention requirements, which are disabled by the Services as a default and may be enabled only by Customer’s administrator; (2) requests sent using Customer’s own LLM Provider API keys, endpoints, or cloud infrastructure, which are governed by Customer’s agreement with the applicable LLM Providers; (3) Customer Data that Warp stores solely to provide certain features of the Services to Customer in accordance with this Agreement; or (4) System and Usage Data.

2.7 License Grant by Customer.

Customer hereby grants to Warp a non-exclusive, transferable and sublicensable (solely as set forth herein), worldwide, royalty free license to use, reproduce, modify and perform the Customer Data solely as reasonably required to operate and provide the Services. In addition, Customer understands that certain portions of the Services may allow other users to view, edit, share, and/or otherwise interact with Customer Data. By providing or sharing Customer Data on or through the Services (either publicly or to specific users), Customer grants the right and license to each such user to view, edit, share, use and/or otherwise interact with such Customer Data in accordance with the specific account settings and this Agreement.

2.8 Warp Can Use Data for Product Improvement.

Warp owns the System and Usage Data collected during Customer’s use of the Services. Warp shall have the right to (i) use such System and Usage Data for the purpose of analytics, to improve and enhance the Product and Services, and for other development, diagnostic and corrective purposes in connection with the Warp offerings, and (ii) disclose such data to third party entities who may assist Warp with such activities solely in aggregate or other de-identified form from which neither Customer nor any Authorized User may be identified. Nothing herein will be construed as restricting or prohibiting Warp from utilizing the System and Usage Data in any way, so long as it remains aggregated and de-identified, or to enforce this Agreement.

2.9 Feedback.

Customer agrees that submission of any ideas, suggestions, documents, and/or proposals to Warp through its suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at Customer’s own risk and that Warp has no obligations (including without limitation obligations of confidentiality or compensation to any person providing such Feedback) with respect to such Feedback. Customer represents and warrants that Customer has all rights necessary to submit the Feedback and will not knowingly provide Feedback that is subject to any third-party intellectual property rights. Customer hereby grants to Warp a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Warp’s business.

2.10 Trial Services.

Warp may offer certain product features, APIs, or other components of the Services to Customer as Trial Services. Customer’s use of Trial Services is subject to any additional terms specified by Warp and is only permitted during the limited period Warp designates (or, if not designated, until terminated by Warp in accordance with this Agreement). Warp may modify or terminate Customer’s right to use Trial Services at any time and for any reason in its sole discretion. Customer understands that Trial Services are under active development, may be inoperable or incomplete, and are likely to contain more errors and bugs than the generally available features of the Services. Warp makes no representations as to the performance of such Trial Services nor that any Trial Services will ever be made generally available. All information regarding the features or performance of any Trial Services is deemed Warp Confidential Information. To the maximum extent permitted by applicable law, Warp disclaims all obligations and liabilities with respect to Trial Services, including but not limited to any support, warranty, and indemnity obligations. THE TRIAL SERVICES ARE PROVIDED ON AN “AS-IS” BASIS. NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT, WARP’S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER FOR SUCH SERVICES SHALL NOT EXCEED THE GREATER OF (A) ONE-HUNDRED DOLLARS ($100) OR (B) THE FEES PAID BY CUSTOMER FOR SUCH TRIAL SERVICES.

3. Customer’s Infrastructure; Third-Party Platforms.

3.1 Customer’s Infrastructure.

Customer has sole responsibility for Customer’s information technology infrastructure and any licenses required for such infrastructure, including computers, software, databases, electronic systems and networks, whether operated directly by Customer or through the use of third-party services.

3.2 Interaction with Third-Party Services.

Customer acknowledges that the Services may interoperate with, and be dependent on, certain third-party platforms, solutions, software or technology which are currently or may be in the future utilized by Customer and with respect to which Customer has a separate contractual relationship with the applicable third party (collectively, the “Third Party Services”). The Third Party Services may also be subject to additional terms and conditions, privacy policies, or other agreements with such third party, and Customer may be required to authenticate to or create separate accounts to use Third Party Services. Some Third Party Services may provide Warp with access to certain information that Customer has provided to such Third Party Services. Any data, information or other materials related to Customer collected via or received by Warp from any Third Party Service will be deemed Customer Data. Warp has no control over and is not responsible for such Third Party Services, including the accuracy, availability, reliability or completeness of information shared by or available through the Third Party Services, or the privacy practices of the Third Party Services. Warp will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third Party Services. Warp enables these Third Party Services merely as a convenience and the integration or inclusion of such Third Party Services does not imply an endorsement or recommendation. Any dealings Customer has with third parties while using the Services are between Customer and the third party. Warp is not liable for any loss caused by or claim that Customer may have against any such third party or that arise under Customer’s agreements with any such third party. If at any time any such Third-Party Services provider ceases to make their features or programs available to Warp on reasonable terms, Warp may cease to provide access to such features or programs without entitling Customer to a refund, credit, or other compensation.

4. Fees; Payments; Audit.

4.1 Warp’s Right to be Paid Accrues on Delivery.

Warp’s right to payment for the Product purchased by Customer shall accrue on the date the Product is Delivered to Customer or, for usage-based or consumption fees, as such fees are incurred. Except in the case of material breach of this Agreement by Warp, all payments accrued or made under this Agreement are non-cancelable and nonrefundable. Fees are as set forth in the applicable Order or Warp's then-current pricing page if not expressly set forth in an Order, and may be charged on a subscription, usage-based, consumption, prepaid-commitment, or other basis, or any combination thereof, in each case measured in the units and at the rates specified therein. Customer’s usage and consumption are measured by Warp's systems, and Warp's records of usage and consumption shall be conclusive absent manifest error. Fees that reflect the pass-through of third-party costs (including but not limited to model inference and hosting fees) may vary to reflect changes in the underlying third-party charges.

4.2 Invoicing and Payment.

Unless otherwise indicated in an applicable Order, payment of fees is due within thirty (30) days of Customer’s receipt of an undisputed invoice.Customer must notify Warp at legal@warp.dev if it disputes any portion of an invoice within seven (7) days after receipt, specifying the disputed amount and the basis for the dispute. Any invoiced amount not disputed within seven (7) days will be deemed accepted by Customer.Any amount which is unpaid when due may be subject to interest equal to the lower of 1.5% per month or the highest applicable legal rate. If Customer’s account is referred to a collection agent due to non-payment, Warp shall be entitled to reimbursement for reasonable costs associated with the collection of any past-due balance.In addition to its other rights and remedies, Warp may suspend Customer's and its Authorized Users' access to the Services if any payment is thirty (30) or more days overdue and remains unpaid seven (7) days after Warp's written notice.

4.3 Taxes.

All stated prices are exclusive of any taxes, fees, and duties or other amounts, however designated. Any taxes related to the Product, Documentation, Services or Support Services purchased or licensed pursuant to this Agreement including, but not limited to, withholding taxes, will be paid by Customer, or Customer will present an exemption certificate acceptable to the taxing authorities. Customer will not be liable for taxes imposed on Warp based on Warp’s income.

4.4 Additional Users.

If the actual number of Authorized Users and/or teams (as applicable) exceeds the number on Customer’s original Order, then the fees for the applicable Subscription term will be adjusted accordingly, and Customer shall pay Warp the adjusted balance based on Warp’s properly issued invoice. The additional per-Authorized User and/or team fee will be pro-rated based on the number of months left in the applicable Subscription term.

4.5 Audit.

Upon Warp’s reasonable suspicion of Customer’s material breach of this Agreement, Warp may audit any relevant records during Customer’s normal business hours, in a manner that will not unreasonably interfere with normal business operations and subject to the same confidentiality terms as set forth in this Agreement. Warp will give Customer at least seven (7) days prior written notice of inspection, and will not conduct audits more than once per year, except in follow-up to the discovery of material discrepancies, in which case the audits may be conducted as reasonably necessary under the circumstances and no later than thirty (30) days after discovery of the material discrepancy. All audits will be at Warp’s expense, unless the audit finds a material error resulting in underpayment by Customer, in which case Customer will pay for the audit.

5. Warranties and Disclaimer.

5.1

Subject to each of the other provisions hereof, Warp warrants, solely to Customer, that during any paid Subscription term (the “Warranty Period”), the Product, when installed properly, will substantially comply in all material respects with the Specifications.

5.2

The warranty provided in Section 5.1 will not apply if: (i) Customer fails to notify Warp in writing during the Warranty Period of any such breach; or (ii) Customer fails to implement all Updates to the Product made available at no charge to Customer during the Warranty Period.

5.3

If Warp breaches the warranty set forth in Section 5.1, Customer’s sole and exclusive remedy, and Warp’s sole obligation, shall be to remedy such breach as set forth in this Section. At the sole discretion of Warp, Warp will, at its expense, either: (i) repair or replace the defective Product to enable it tosubstantially comply in all material respects with the Specifications; or (ii) if the Product as a whole does not substantially comply in all material respects with the Specifications, terminate this Agreement in accordance with Section 9.3 and refund to Customer the fees prepaid by Customer to Warp for the defective Product on a pro rata basis for unused Services for the period after the effective date of such termination.

5.4 Customer Warranties.

Customer represents and warrants that it has all rights that are necessary to grant Warp the rights granted under this Agreement, that neither Customer Data, nor the inclusion of Customer Data in the Services, will infringe, misappropriate or violate a third party’s Intellectual Property Rights, or Applicable Privacy Laws, and that Customer will comply with all applicable laws.

5.5 ALL OTHER WARRANTIES ARE DISCLAIMED BY BOTH PARTIES.

EXCEPT AS MAY OTHERWISE BE EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO ANY PRODUCTS, SERVICES, DOCUMENTATION, DATA OR OTHER TANGIBLE OR INTANGIBLE MATERIALS PROVIDED UNDER THIS AGREEMENT, AND HEREBY DISCLAIMS ANY OTHER EXPRESS AND ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WARP DOES NOT WARRANT THAT THE PRODUCT, SERVICES OR DOCUMENTATION PROVIDED UNDER THIS AGREEMENT WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. WITHOUT LIMITING ANYTHING CONTAINED IN THIS AGREEMENT, CUSTOMER AGREES AND ACKNOWLEDGES THAT WARP CANNOT GUARANTEE THE ACCURACY OF THE SERVICES OR OUTPUT PROVIDED HEREUNDER AND THAT THE SERVICES AND OUTPUT MAY INCLUDE INACCURACIES (INCLUDING DUE TO, WITHOUT LIMITATION, INACCURATE OR UNCLEAR DATA, SOFTWARE OR OTHER INFORMATION TECHNOLOGY ERROR OR MALFUNCTION, AND/OR HUMAN ERROR).CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICES LEVERAGE PROPRIETARY AND/OR THIRD-PARTY ADVANCED TECHNOLOGIES, SUCH AS ARTIFICIAL INTELLIGENCE, MACHINE LEARNING SYSTEMS AND SIMILAR TECHNOLOGY AND FEATURES (COLLECTIVELY, “AI TECHNOLOGY”). CUSTOMER ACKNOWLEDGES AND AGREES THAT, IN ADDITION TO THE OTHER LIMITATIONS AND RESTRICTIONS SET FORTH IN THIS AGREEMENT, CUSTOMER WILL USE DISCRETION AND INDEPENDENT JUDGMENT BEFORE RELYING ON, SHARING OR OTHERWISE USING THE RESULTS GENERATED BY THE AI TECHNOLOGY AND PROVIDED TO CUSTOMER THROUGH THE SERVICES (“OUTPUT”). NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, WARP BEARS NO LIABILITY TO CUSTOMER OR ANYONE ELSE ARISING FROM OR RELATING TO CUSTOMER’S USE OF THE OUTPUT.

WARP TAKES NO RESPONSIBILITY, AND ASSUMES NO LIABILITY, FOR ANY CUSTOMER DATA THAT CUSTOMER OR ANY OTHER USER OR THIRD-PARTY POSTS, SENDS, OR OTHERWISE MAKES AVAILABLE THROUGH THE SERVICES. CUSTOMER IS SOLELY RESPONSIBLE FOR THE CUSTOMER DATA AND THE CONSEQUENCES OF POSTING, PUBLISHING IT, SHARING IT, OR OTHERWISE MAKING IT AVAILABLE THROUGH THE SERVICES. CUSTOMER FURTHER UNDERSTANDS AND AGREES THAT CUSTOMER MAY BE EXPOSED TO CONTENT POSTED THROUGH THE SERVICES THAT IS INACCURATE, OBJECTIONABLE OR OTHERWISE UNSUITED TO CUSTOMER’S PURPOSE, AND CUSTOMER AGREES THAT WARP SHALL NOT BE LIABLE FOR ANY DAMAGES CUSTOMER MAY ALLEGE TO HAVE INCURRED AS A RESULT OF OR RELATING TO ANY CUSTOMER DATA OR OTHER CONTENT ACCESSED ON OR THROUGH THE SERVICES.

6. Indemnities.

6.1 Indemnification of Customer by Warp.

Subject to Sections 6.2, 6.4, and 7.3 of this Agreement, Warp shall (i) defend or (at its option) settle, any claim brought against Customer by a third party alleging that at the time of Delivery the Warp-Authored Software infringes the copyright, trademark, or US patent of said third party (a “Claim”) and (ii) indemnify Customer against damages and costs finally awarded against and payable by Customer in any such Claim.

6.2 Exceptions.

Warp shall have no liability to Customer under this Section:

(a) to the extent any Claim is based on or arises from any Product or any portion or component thereof, that is: (A) not provided directly to Customer by Warp; (B) modified by a party other than Warp and not at Warp’s direction, if the alleged infringement would not have occurred in the absence of such modification; (C) combined with other products, processes or materials where the alleged infringement would not have occurred in the absence of such combination; or (D) based on third-party AI Technology, Output, Customer Data or software licensed under an open source license;

(b) to the extent Customer continues allegedly infringing activity after: (1) being notified thereof; and (2) being provided, at no additional charge, modifications that would have avoided the alleged infringement without significant loss of performance, compatibility or functionality; or

(c) from any breach of the Customer’s obligations under this Agreement.

6.3 Indemnification of Warp by Customer.

Customer will (i) defend or (at its option) settle, any claim brought against Warp by a third party and (ii) indemnify Warp from and against any losses, liabilities, damages, costs or expenses (including court costs and reasonable attorneys' fees) arising out of or relating to: (a) a breach of Customer’s responsibilities set forth in Section 2.4 or its warranty in Section 5.4, (b) Warp’s authorized use or processing of Customer Data, and (c) Customer’s breach of the licensing restrictions in Section 2.3.

6.4

Despite any of the foregoing, each party’s obligations under Section 6 shall be valid only if the party requesting indemnification:

(a) gives notice to the indemnifying party of any claim promptly upon becoming aware of the same;

(b) gives the indemnifying party the sole control of the defense and settlement of any claim and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the said claim or action except upon the express instructions of the indemnifying party; and

(c) acts in accordance with the reasonable instructions of the indemnifying party and gives to the indemnifying party such assistance as it shall reasonably require in respect of the conduct of the said defense.

6.5

In the event of any alleged Intellectual Property infringement, Warp shall be entitled at its own expense and in its sole discretion to: (a) procure the right for the Customer to continue using the Product and Documentation; (b) make such alterations, modifications, or adjustments to the Product so that it becomes non-infringing without incurring a material diminution in performance or function; or (c) replace the Product with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function. If neither (a)-(c) are reasonably practicable, Warp may terminate the applicable Order and refund to Customer any pre-paid, unused fees paid by Customer corresponding to the unused period of the Subscription term. THIS SECTION 6.5 STATES WARP’S SOLE AND EXCLUSIVE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.

7. Limitation of Liability.

7.1 Indirect Damages Are Limited.

EXCEPT WITH RESPECT TO CLAIMS BASED UPON EITHER PARTY’S BREACH OF CONFIDENTIALITY OBLIGATIONS HEREUNDER, AND SUBJECT TO SECTION 7.2, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF SUCH OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7.2 Certain Damages Are Always Prohibited.

IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR (i) ANY SPECIAL OR PUNITIVE DAMAGES, (ii) EXCEPT WITH RESPECT TO CLAIMS BASED UPON CUSTOMER’S BREACH OF ITS LICENSED RIGHTS HEREUNDER, ANY LOSS OF PROFITS, LOST BUSINESS, OR LOST REVENUE, OR (iii) THE USE OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, AND WHETHER OR NOT SUCH DAMAGES ARE CHARACTERIZED AS DIRECT, INDIRECT OR OTHER, EVEN IF SUCH OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7.3 Maximum Liability.

EXCEPT IN THE CASES OF (i) BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, (ii) MISAPPROPRIATION OF EITHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR (iii) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT EXCEED THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO WARP UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRECEDING ANY CLAIM MADE HEREUNDER. IN THE CASE OF WARP’S INDEMNIFICATION OBLIGATIONS OR ITS BREACH OF SECTION 8 (CONFIDENTIALITY) OF THIS AGREEMENT OR THE DPA, IN NO EVENT SHALL WARP’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT EXCEED TWO TIMES (2X) THE AGGREGATE AMOUNTS ACTUALLY PAID BY CUSTOMER TO WARP UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRECEDING THE CLAIM MADE HEREUNDER.

8. Confidentiality.

8.1 Confidentiality Agreement.

Each of the parties hereto undertakes to the other to keep confidential all Confidential Information of the other party.

8.2 Exceptions.

Confidential Information will not include any information which: (a) is already lawfully in the receiving party’s possession without obligation of confidentiality; (b) is or becomes generally available to the public through no fault of the receiving party; or (c) is independently developed by the receiving party without any use of the other party’s Confidential Information.

8.3 Required Disclosures.

If any Confidential Information of the other party is required to be disclosed by the receiving party as a matter of law, the receiving party will use all reasonable efforts to provide the disclosing party with prior notice of such disclosure and to obtain a protective order therefor.

8.4 Injunctive Relief.

The parties agree that the disclosing party’s remedies at law for a breach by the receiving party of its obligations hereunder may be inadequate and that the disclosing party shall be entitled to seek equitable relief.

9. Term and Termination of Agreement and Orders.

9.1 Term of Agreement.

This Agreement shall begin on the Effective Date and shall continue in force for an initial term of one year unless validly terminated earlier. Thereafter, this Agreement shall automatically renew for additional one-year periods unless either party notifies the other in writing of its intent not to renew at least thirty (30) days prior to the end of the then-current term.

9.2 Term of Orders.

Orders issued under this Agreement shall begin and end as specified in each such Order. Unless otherwise specified in an Order, Orders shall automatically renew at Warp’s then-current standard fees for additional one-year periods unless either party notifies the other in writing of its intent not to renew at least thirty (30) days prior to the end of the then-current term.

9.3 Termination.

This Agreement and any Order may be terminated by either party upon notice if the other party breaches any material term or condition of this Agreement and fails to remedy the breach within thirty (30) days after being given notice thereof. In addition, this Agreement, and any license granted hereby, may be suspended or terminated by Warp upon its reasonable determination that Customer’s use of the Product or Services poses a threat to the secure or reliable provision of Services to other customers, or to the Cloud Infrastructure, or to the data contained therein. Warp will use commercially reasonable efforts to provide notice prior to any suspension or termination, except in the event of an emergency or imminent harm to the Product or Warp’s customers.

9.4 Effect of Termination.

Upon termination of this Agreement, Warp’s obligation to provide the Services will immediately cease, any and all licenses granted by Warp hereunder will immediately terminate, and all unpaid fees and other amounts due from Customer for Services previously provided by Warp will immediately become due and payable. In addition, Customer shall immediately uninstall or destroy (or at the sole option of Warp, return) all copies of the Product and Documentation in its possession or control, and a duly authorized officer of the Customer shall certify in writing to Warp that the Customer has complied with such obligation. Despite the foregoing, upon any termination or expiration of this Agreement, the terms of this Agreement will continue to apply to any Order with a term that extends beyond the date of expiration or termination of the Agreement. In addition, for up to thirty (30) days after expiration or termination of this Agreement, Customer shall have the right (provided that Customer has met all of its financial and other obligations under this Agreement) to have Warp furnish Customer (at no additional cost) with an electronic copy of the Customer Data, in a format reasonably agreed upon between the parties. Any termination of this Agreement pursuant to this Section shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.

9.5 Survival.

Sections 2.1, 2.3, 2.5, 2.8, 2.9, 4, 5.4, 5.5, 6- 8, 9.4, 9.5, 10, 11, and 12, all associated definitions, and all accrued rights to payment shall survive any termination or expiration of this Agreement.

10. Export Regulations.

Each party agrees to comply with all applicable regulations of the United States Department of Commerce and with the United States Export Administration Act, as amended from time to time, and with all applicable laws and regulations of other jurisdictions with respect to the provision and use of the Services. Without limiting the foregoing, Customer represents and warrants that it: (a) is not listed on, or majority-owned by any entity listed on, any U.S. government list of prohibited or restricted parties; (b) is not located in (or a national of) a country that either is subject to a U.S. government embargo or has been designated by the U.S. government as a “state sponsor of terrorism”; (c) will not (and will not permit any third parties to) access or use the Services in violation of any U.S. export embargo, prohibition or restriction; and (d) will not submit to the Services any information that is controlled under the U.S. International Traffic in Arms Regulations.

11. Compliance with Applicable Laws.

Each party agrees to comply with all applicable laws in connection with providing and using the Services pursuant to this Agreement, including, without limitation, all Applicable Privacy Laws.

12. Miscellaneous.

12.1 Force Majeure.

Neither party hereto shall be liable for any breach of its obligations hereunder resulting from causes beyond its reasonable control including but not limited to fires, floods, earthquakes, internet service provider failures, pandemic or epidemic illness, strikes (of its own or other employees), insurrection or riots, embargoes, requirements or regulations of any civil or military authority.

12.2 Waiver.

The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions.

12.3 Notices.

All notices must be in writing and in the English language and will be deemed given only when sent by mail (return receipt requested), hand-delivered, sent by documented overnight delivery service to the party to whom the notice is directed, at its address indicated in the signature box to this Agreement (or such other address as to which the other party has been notified), or sent by email to the email address as may be provided by one party to the other from time to time.

12.4 Invalidity and Severability.

If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect.

12.5 Assignment and Sublicensing.

Either party may assign this Agreement without consent to an entity that acquires all or substantially all of the shares of the assigning party, or all or substantially all of its business or assets, whether by merger, reorganization, acquisition, sale, or otherwise. Despite the foregoing, Customer may not assign, transfer or sublicense this Agreement or any of its rights or obligations hereunder to any competitor of Warp as determined in Warp’s reasonable discretion. In all other cases, neither party shall assign, transfer or sublicense this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party.

12.6 Governing Law; Venue.

This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflict of law provisions thereof. The sole venue for all disputes relating to this Agreement shall be in New York, New York, USA.

12.7 Attorneys’ Fees.

If any legal action or other proceeding is brought to enforce the provisions of this Agreement, the prevailing party shall be entitled to recover reasonable attorney fees and other costs incurred in the action or proceeding, in addition to any other relief to which the prevailing party may be entitled.

12.8 Independent Contractors.

The parties agree that each is an independent contractor and neither party has the right or authority to assume or create any obligation or responsibility on behalf of the other party.

12.9 Counterparts.

This Agreement may be executed in any number of counterparts, each of which shall be considered an original, but all of which together will constitute one and the same instrument.

12.10 Amendments.

Warp reserves the right in its sole discretion and at any time and for any reason to modify this Agreement. With respect to each Order, any modifications to this Agreement will become effective upon the date of Customer’s next renewal of such Order. It is Customer’s responsibility to review this Agreement 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 Customer’s next renewal.Notwithstanding the foregoing, in some cases (e.g., to address compliance with laws, or as necessary for new features) Warp may specify that such modifications become effective during Customer’s then-current Order term.

13. Publicity.

Either party to this Agreement may publicize the existence of the business relationship established by this Agreement in connection with its products, promotions, or publications. Customer agrees to participate with Warp in a case study, and Warp may publish the results. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer further agrees to reasonably cooperate with Warp to serve as a reference account upon request. Customer grants Warp permission to use Customer’s name and logo(s) in connection with promotion of Warp’s products and services. All representations of Customer’s logo shall be exact copies of those used by Customer in design, color and other details. Except as expressly set forth in this Section, nothing in this Agreement gives either party any right, title or interest in the other party’s logos, trademarks, service marks or trade names. Despite anything to the contrary, neither party may disclose the specific terms of this Agreement, except as required by applicable law.

THIS AGREEMENT, INCLUDING ALL ATTACHMENTS, SCHEDULES, EXHIBITS AND ALL APPLICABLE LICENSE AGREEMENTS, CONSTITUTES THE COMPLETE AND EXCLUSIVE UNDERSTANDING OF THE PARTIES, AND SUPERSEDES ALL PRIOR AND CONTEMPORANEOUS SALES PROPOSALS, NEGOTIATIONS AND AGREEMENTS, ALL TERMS AND CONDITIONS INCLUDED AS PART OF ORDERS AND ALL OTHER REPRESENTATIONS OR COMMUNICATIONS, WHETHER ORAL OR WRITTEN, WITH RESPECT TO THE SUBJECT MATTER HEREOF. THE PARTIES AGREE THAT ANY ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS CONTAINED ON, REFERENCED BY OR INCORPORATED INTO CUSTOMER’S ORDER ARE EXPRESSLY REJECTED AND SHALL NOT BE CONSIDERED AN AMENDMENT TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY PURCHASE ORDER.ANY SUCH PURCHASE ORDER DOCUMENT SHALL BE FOR ADMINISTRATIVE PURPOSES ONLY AND HAVE NO LEGAL EFFECT.

Exhibit A

Certain Definitions

“Applicable Privacy Laws” means, in relation to any personal information that is processed in the provision of the Services, any applicable law, regulation or legislation protecting individual privacy, including without limitation, where applicable, the California Consumer Privacy Act, and the EU Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (the “GDPR”).

“Authorized User” means any individual(in each case to the extent that Customer’s license includes, and Customer pays for, such individual) who is authorized to access the Product, Documentation or Services and exercise the rights licensed by Customer. Each Authorized User must use a unique identity to access and use the Product unless otherwise licensed, and may access the Services only to the extent licensed by Customer.

“Cloud Infrastructure” means the Product, and the computing, storage, networking, and other hardware and software infrastructure used in providing the Services.

“Confidential Information” means the Product and each party’s product road maps, product development plans, pricing, business plans, customer lists, business and financial information, plus any other information or data which a party discloses to the other party in tangible form and conspicuously marks as “confidential,” “proprietary” or similar identification.

“Customer Data” means information, data, and other content, in any form or medium, that is submitted, posted, input, downloaded from, or otherwise provided by Customer or its Authorized Users (or on their behalf) via the Cloud Infrastructure by or through our Service.

“Delivery” or “Delivered” means the availability of the Product and/or Documentation by Warp to the Customer via electronic or other means, without regard to when Customer actually installs or uses such Product.

“Documentation” means the instruction manuals, user guides, and other information to be made available from time to time by Warp in either printed or electronic form to the Customer.

“Intellectual Property Rights” means all inventions, know-how, patents (including originals, divisionals, continuations, continuations-in-part, extensions, utility models and re-issues), patent applications, copyrights (including all related rights and registrations and applications therefor), trade secrets, trademarks, internet domain names, moral rights, and all other proprietary and intellectual property rights.

“Order” means any document agreed to between the parties which sets forth the Product licensed by the Customer and any relevant pricing. Multiple Orders may be agreed to under this Agreement.

“Product” means, collectively, the product(s) set forth in any Order (to the extent such product(s) are subsequently made available to Customer by Warp) (including but not limited to Warp Applications, other downloadable apps, application programming interfaces (“APIs”) and tools), as well as any Update made available to Customer by Warp.

“Services” means the Product and related services accessed by Authorized Users in a manner consistent with Warp’s published Documentation and this Agreement.

“Site” means the address, business unit or other geographical location or business identifier indicated on an applicable Order from which the Product may be accessed or used.

“Specifications” means those technical specifications in respect of the Product(s) which are published by Warp and are in effect at the time of Delivery.

“Subscription” means licenses to the Product, Documentation, and Support Services.

“Support Services” means technical support as provided for in Section 1.3.

“System and Usage Data” means data collected by Warp regarding (a) the Product and Services that may be used to generate logs, statistics, analytics, or reports regarding the performance, availability, usage, integrity or security of the Product and Services and (b) aggregate response rate and other aggregate measures of the Product’s and Services’ performance, as well as information about Customer’s activation, configuration, and use of the Product and Services.System and Usage Data expressly excludes Customer Data.

“Trial Services” means software or services that are distributed or otherwise made available for Customer to try at its option, which may be designated as proof of concept, beta, limited release, developer preview, non-production, evaluation, or that are similarly described in the corresponding Order, applicable Warp online Trial Services registration process, or Documentation.

“Update” means such enhancements, modifications, or additions to the Product or Documentation as may be made available from time to time by Warp to Customer. Updates include without limitation upgraded versions of Warp Applications which may automatically electronically upgrade the version of Warp Applications that Customer is using on a mobile or desktop device. Customer consents to such automatic upgrading on mobile or desktop devices and agrees that the terms and conditions of this Agreement will apply to all such upgrades.

“Warp-Authored Software” means the software included in the Product delivered by Warp to Customer on which Warp claims the copyright and which is not made in whole or in part according to Customer’s specifications.