Mattermost, Inc. Software and Services License Agreement

IMPORTANT – READ CAREFULLY. THIS MATTERMOST, INC. SOFTWARE AND SERVICES LICENSE AGREEMENT (“AGREEMENT”) SETS FORTH THE LEGAL TERMS AND CONDITIONS WHICH GOVERN RELATIONSHIP BETWEEN YOU (“LICENSEE” OR “YOU”) AND MATTERMOST, INC. (“MATTERMOST” OR “LICENSOR”) AND THE RELATED TERMS AND CONDITIONS APPLICABLE TO ANY COMPANY PRODUCT YOU DOWNLOAD OR ACCESS.  IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU SHOULD CLICK ON CANCEL AT THE BOTTOM OF THIS PAGE AT WHICH POINT YOU WILL NOT BE GRANTED ACCESS TO THE PRODUCT.  DO NOT CLICK “I ACCEPT” UNLESS (1) YOU ARE AUTHORIZED TO ACCEPT AND AGREE TO THE TERMS OF THIS AGREEMENT AND (2) YOU INTEND TO ENTER INTO AND TO BE BOUND BY THE TERMS OF THIS AGREEMENT.  IF YOU CLICK ON THE BOX AT THE BOTTOM OF THIS PAGE LABELED “I ACCEPT”, YOU WILL BE GRANTED ACCESS TO THE PRODUCT, AND THIS AGREEMENT WILL BE EFFECTIVE IMMEDIATELY (THE “EFFECTIVE DATE”).

This Agreement describes the legal framework under which License may license Product Materials and Services from Mattermost. All references in this Agreement to the “sale” or “purchase” (or other similar terms) of any Subscription or Product Materials shall mean the sale or purchase of a license to such Product. 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. Orders; Subscriptions; Delivery; Renewals; Support.  

1.1 How to Order. During the Term of this Agreement and subject to Licensee’s compliance with the terms and conditions hereof, including the payment of the applicable fees, Licensee may purchase Product Materials and Support by the parties agreeing to Orders that reference this Agreement.

1.2. Subscriptions. The Product Materials are licensed pursuant to Subscriptions. Subscriptions will be for the term agreed to in an applicable Order. Subscriptions will automatically renew for successive one-year terms unless Licensee provides written notice of non-renewal to Mattermost at least thirty days prior to the end of the then-current term of the applicable subscription.

1.3 Electronic Delivery. Unless otherwise agreed to, all Product Materials and Updates licensed by Licensee pursuant to this Agreement will be delivered electronically to Licensee (such as by electronic mail, file transfer or other means of electronic transmission, or by giving Licensee access to such Product Materials and Updates). In the case of a renewal of a Subscription, Licensee acknowledges and agrees that there is no delivery requirement for such renewal. Such renewals shall be deemed Delivered on the first day of the then-current renewal term of the applicable Subscription.

1.4 Support. Subject to Licensee’s compliance with the terms and conditions of this Agreement, Mattermost will provide support to Licensee for the Licensed Software as specified in Mattermost’s support terms and conditions for the Mattermost Enterprise Edition license level as described at https://about.mattermost.com/support.

2. Ownership of Intellectual Property; License Grant; Restrictions; Audit.  

2.1 Ownership. The Product Materials contain proprietary and confidential information of Mattermost and its licensors. Except to the extent licenses are expressly granted hereunder, each party and each party’s licensors, respectively, retains all right, title and interest in and to all patent, trademark, trade secret rights, inventions, copyrights, know‑how and trade secrets in and to that party’s respective products and services. Mattermost retains all right, title and interest in and to any work product created by Mattermost in the course of providing Product Materials, Service or Support under this Agreement, and to all suggestions, ideas, enhancement requests, feedback, code, recommendations or other information provided by Licensee or any third party relating to the Licensed Software, which are hereby assigned to Mattermost. In addition, any additional system software, and the content, organization, graphics, design, compilation, know-how, concepts, methodologies, procedures, and other matters related to Mattermost’s website are protected under applicable copyrights, trademarks and other proprietary rights. The use, copying, redistribution, use or publication by Licensee of any such parts of the website, Product Materials or the Services, except as expressly authorized by this Agreement, is prohibited.

2.2. Licensee Data. The parties agree that, unless otherwise agreed to in writing, Licensee shall not provide to Mattermost any Licensee Data.

2.3 License Grants.

a. License Grant to Licensed Software Not Under a Public Software License. Subject to and in consideration of Licensee’s compliance with the terms and conditions of this Agreement, Mattermost hereby grants to the Licensee, solely during the applicable term specified in an Order, a royalty-free, limited, non-exclusive, non-transferable (except as otherwise expressly set forth in this Agreement) and non-sublicensable license to: (i) install, run and Use the Licensed Software for the number of Registered Authorized Users of the Licensed Software for which Licensee has a current subscription; and (2) use the Documentation, training materials or other materials supplied by Mattermost to enable such internal use.

b. License Grant to Licensed Software Under a Public Software License. Any software code contained in the Licensed Software which is licensed under a Public Software License will be licensed to Licensee under the terms and conditions of the third-party license applicable to such software code, including license terms or conditions included in source code headers, “license” or “copying” file, or the like that may be associated with the software code. In each such case, Licensee’s licensed rights to such software code are determined by the applicable Public Software License, not this Agreement. Mattermost does not seek to restrict, or receive compensation for, the act of copying or redistributing publicly licensed code which is otherwise freely redistributable to third parties (and not otherwise restricted by federal trademark or other laws). To the extent the terms of the licenses applicable to third party Open Source Components require Licensor to make an offer to provide source code or related information in connection with the Open Source Components, such offer is hereby made. Any request for source code or related information should be directed only  to: subscribers@mattermost.com.

c. Copies. Licensee shall be entitled to make such back-up copies (“Backup Copies”) of the Product Materials as shall be consistent with its usual policies for backup of its internal data. Any such Backup Copies shall in all respects be subject to the terms and conditions of this Agreement and shall be deemed to form part of the Product Materials. Backup Copies shall at no time be stored in a manner enabling them to be directly executed.

2.4 License Restrictions. Licensee (and its Registered Authorized Users) shall not remove, alter or obscure any of Mattermost’s (or its licensors’) copyright notices, proprietary legends, trademark or service mark attributions, patent markings or other indicia of Mattermost’s (or its licensors’) ownership or contribution from the Product Materials. Additionally, Licensee agrees to reproduce and include Mattermost’s (and its licensors’) proprietary and copyright notices on any copies of the Product Materials, or on any portion thereof, including reproduction of the copyright notice. Licensee further agrees that it (and its Registered Authorized Users) will not without express written permission of Mattermost: (a) reverse compile, disassemble, decompile or engineer, copy, modify or adapt the whole or any part of the Product Materials; (b) make the Product Materials or Services available to, or use the Product Materials or Services for the benefit of, anyone other than Licensee or Licensee’s customers; (c) assign, transfer, sell, resell, license, sublicense, distribute, rent or lease the Product Materials or Services, or include any Product Materials or Services in a service bureau or outsourcing offering; (d) permit direct or indirect access to or use of the Product Material or Services in a way that circumvents a contractual usage limit; (e) copy the Product Materials or Services or any part, feature, function or user interface thereof (except as expressly otherwise permitted under this Agreement; (f) frame or mirror any part of the Services, other than framing on Licensee’s own intranets or otherwise for its own internal business purpose; or (g) access or use any Product Materials or Services in order to build a competitive product or service.

3. Fees; Payments.

3.1 Accrual of Payment Rights. Mattermost’s right to payment for Product Materials licensed by Licensee shall accrue on the date the Licensed Software is Delivered to Licensee. Except as provided in Section 4.3, all payments accrued or made under this Agreement are non-cancelable and nonrefundable.

3.2 Invoicing and Payment. Mattermost will invoice Licensee in accordance with the relevant Order and, if applicable, in accordance with Section 1.2. Unless otherwise indicated, payment of the License Fee is due within thirty (30) days of Licensee’s receipt of an undisputed invoice. Mattermost shall be entitled to reimbursement for any costs associated with the collection of any past-due balance.

3.3 Taxes. All stated prices are exclusive of any taxes, fees, and duties or other amounts, however designated, and including without limitation value added and withholding taxes that are levied or based upon such charges, or upon this Agreement. Any taxes related to the Product Materials, support, or training purchased or licensed pursuant to this Agreement including, but not limited to, withholding taxes, will be paid by Licensee, or Licensee will present an exemption certificate acceptable to the taxing authorities. Licensee will not be liable for taxes imposed on Mattermost based on Mattermost’s income.

3.4 Licensee Report; Additional Users. No later than 15 calendar days after the end of each calendar quarter during the Term (and after the Term with respect to the final Licensee Usage Report), Licensee shall deliver to Mattermost:

a. a report in writing and certified by an authorized agent of Licensee (the “Licensee Usage Report”) stating the actual number of Registered Authorized Users during the just-ended calendar quarter (the “Reporting Period”); and

b. if the number of Registered Authorized Users for such Reporting Period exceeds the number on Licensee’s original purchase order, then in addition an amended or additional purchase order for the incremental additional Registered Authorized Users.

The Licensee Usage Report shall include a screenshot (or screenshots, as applicable to document all Registered Active Users) dated the last day of the applicable Reporting Period taken from Licensee’s Systems Console and showing the number of “Total Authorized Users” (referred to herein as “Registered Authorized Users”). If the actual number of Registered Authorized Users for the applicable Reporting Period exceeds the number on Licensee’s original purchase order, then the fees for such Reporting Period will be adjusted accordingly, and Licensee shall pay Mattermost the adjusted balance based on Mattermost’s properly issued invoice.

The additional per-Registered Authorized User fee will be pro-rated based on the number of months left in the applicable subscription term, including all of the months for the calendar quarter applicable to the Licensee Usage Report. No downward adjustments will be made. Mattermost will invoice Licensee based on Mattermost’s then-current list prices.

4. Warranty and Disclaimer.

4.1 Subject to each of the other provisions hereof, Mattermost warrants, solely to Licensee, that (A) it has all rights and licenses necessary for it to perform its obligations hereunder, (B) other than license renewal enforcement tools, it will not knowingly include, in the Licensed Software Delivered to Licensee hereunder, any computer code or other computer instructions, devices or techniques (including without limitation those known as disabling devices, Trojans, or time bombs) that are intentionally designed to disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, and (C) for a period of sixty (60) days after the Licensed Software is initially Delivered to Licensee (the “Warranty Period”), the Licensed Software, when installed properly, will be capable of functioning substantially in accordance with the Specifications.

4.2 The warranty provided in Section 4.1 will not apply if: (i) Licensee fails to notify Mattermost in writing (including by email sent to subscribers@mattermost.com) during the Warranty Period of any such breach; or (ii) Licensee fails to implement all Updates to the Licensed Software made available at no charge to Licensee during the Warranty Period.

4.3 If Mattermost breaches the warranty set forth in Section 4.1, Licensee’s sole and exclusive remedy, and Mattermost’s sole obligation, shall be to remedy such breach as set forth in this Section. At the sole discretion of Mattermost, Mattermost will, at its expense, either: (i) repair or replace the defective Licensed Software to enable it to perform substantially in accordance with the Specifications; or (ii) terminate this Agreement and refund to Licensee the fees paid by Licensee to Mattermost for the defective Licensed Software.

4.4 The Product Materials and Services are not designed or intended for use or resale in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, air traffic control, or direct life support machines, in which the failure of the Product Materials or Services could lead directly to death, personal injury, or severe physical or environmental damage (“High Risk Activities”). Accordingly, Mattermost specifically disclaims any express or implied warranty of fitness for High Risk Activities.

4.5 EXCEPT AS SET FORTH IN SECTION 4.1, MATTERMOST MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO ANY PRODUCTS, DOCUMENTATION OR OTHER TANGIBLE OR INTANGIBLE MATERIALS PROVIDED UNDER THIS AGREEMENT, AND HEREBY DISCLAIMS ANY OTHER EXPRESS AND ANY IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. MATTERMOST DOES NOT WARRANT THAT THE PRODUCT MATERIALS PROVIDED UNDER THIS AGREEMENT WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE OR THAT SUCH PRODUCT MATERIALS WILL SUCCEED IN RESOLVING ANY PROBLEM.

5. Limitation of Liability.

5.1 Limitation on Indirect Damages. EXCEPT WITH RESPECT TO CLAIMS BASED UPON EITHER PARTY’S BREACH OF CONFIDENTIALITY OBLIGATIONS HEREUNDER, AND SUBJECT TO SECTION 5.2, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCURRED BY THE OTHER PARTY, 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.

5.2 Certain Damages Excluded Entirely. EXCEPT WITH RESPECT TO CLAIMS BASED UPON LICENSEE’S BREACH OF ITS LICENSED RIGHTS HEREUNDER, IN NO EVENT WILL EITHER PARTY WILL BE LIABLE FOR ANY LOSS OF PROFITS OR LOST REVENUE.  IN NO EVENT WILL EITHER PARTY WILL BE LIABLE FOR ANY PUNITIVE OR SPECIAL DAMAGES, OR FOR ANY LOSS OF DATA, OR USE OR COST OF PROCUREMENT OF SUBSTITUTE GOODS INCURRED BY THE OTHER PARTY, WHETHER SUCH DAMAGES ARE CHARACTERIZED AS DIRECT, INDIRECT OR OTHER, AND 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.

5.3 Maximum Liability. EXCEPT WITH RESPECT TO (a) CLAIMS BASED UPON MATTERMOST’S INTELLECTUAL PROPERTY INDEMNITY UNDER THIS AGREEMENT, (b) LICENSEE’S BREACH OF ITS LICENSED RIGHTS HEREUNDER,  (c) CLAIMS ARISING FROM A PARTY’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, OR (d) LICENSEES FAILURE TO PAY FEES DUE HEREUNDER, EACH PARTY’S’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY LICENSEE TO MATTERMOST UNDER THIS AGREEMENT.

6. Intellectual Property Rights Indemnity.

6.1 Indemnification. Subject to each of the other provisions hereof, Mattermost (at its expense) shall (i) defend or (at its option) settle, any claim brought against Licensee by a third party alleging that the Mattermost Proprietary Software infringes as of the date of Delivery the copyright, trademark, or US or EU patent of said third party (a “Claim”) and (ii) indemnify Licensee against damages and costs finally awarded against and payable by Licensee in any such Claim.

6.2 Exceptions. Mattermost shall have no liability to Licensee under this Section:

(a) to the extent any Claim is based on or arises from any Product Materials, or any portion or component thereof, that is: (i) not provided directly to Licensee by Mattermost; (ii) modified by a party other than Mattermost and not at Mattermost’s direction, if the alleged infringement would not have occurred in the absence of such modification; or (iii) combined with other products, processes or materials where the alleged infringement would not have occurred in the absence of such combination;

(b) to the extent Licensee continues allegedly infringing activity after: (i) being notified thereof; and (ii) 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 Licensee’s obligations under this Agreement.

6.3 Despite any of the foregoing, Mattermost’s obligations under Section 6.1 shall be valid only if Licensee:

(a) gives notice to Mattermost of any Claim promptly upon becoming aware of the same;

(b) gives Mattermost 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 Mattermost; and

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

6.4. In the event of any alleged Intellectual Property infringement, Mattermost shall be entitled at its own expense and in its sole discretion to: (a) procure the right for the Licensee to continue using the Product Materials; (b) make such alterations, modifications, or adjustments to the Product Materials so that they become non-infringing without incurring a material diminution in performance or function; or (c) replace the Product Materials with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function.

7. Confidentiality.

7.1 Confidentiality Agreement. Each of the parties hereto undertakes to the other to keep confidential and not disclose to any third party all Confidential Information concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or the entering into or performance of this Agreement. At a minimum, the Receiving Party agrees to take the same security precautions to protect against disclosure or unauthorized use of such Confidential Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Confidential Information. Confidential Information shall mean any information which, by its nature or circumstances of disclosure, would reasonably be presumed to be confidential. Despite the foregoing, the Product Materials, and each party’s product road maps, product development plans, pricing, business plans, customer lists, business and financial information shall be deemed to be such party’s Confidential Information. Further, despite any other provision to the contrary, neither party may disclose the specific terms of this Agreement, except as required by law.

7.2 Exceptions: Required Disclosures. Despite all of the foregoing, Confidential Information will not include any information which: (a) is already lawfully in the receiving party’s possession (unless received pursuant to a nondisclosure agreement); (b) is or becomes generally available to the public through no fault of the receiving party; (c) is disclosed to the receiving party by a third party who may transfer or disclose such information without restriction; (d) is disclosed by the receiving party with the disclosing party’s approval; or (e) is independently developed by the receiving party without any use of Confidential Information of the disclosing party. In the event that the receiving party is required by law to make any disclosure of any of the Confidential Information of the disclosing party, by subpoena, judicial or administrative order or otherwise, the receiving party shall first give written notice of such requirement to the disclosing party, and shall permit the disclosing party to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the disclosing party in seeking to obtain such protection.

7.3 Collection of Certain Data; Anonymized Use for Analytics. Licensee may disable (turn off) data recording functionality in the Licensed Software which allows Mattermost to collect and analyze certain anonymized data. If Licensee does not disable such data recording functionality or otherwise prevent data collection, Mattermost may collect data with respect to the aggregate response rate and other aggregate measures of the Licensed Software’s performance, as well as information about Licensee’s activation, configuration, and use of the Licensed Software. Mattermost may use the information collected by such features to verify Licensee’s licensing, provide technical support, and (solely in an anonymized form from which neither Licensee nor any Authorized User can be identified) to otherwise improve the Licensed Software and Services.

7.4 Injunctive Relief. Because of the unique and proprietary nature of the Confidential Information, it is understood and agreed 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 (including without limitation provisional and permanent injunctive relief and specific performance).

7.5 Return of Information. Upon expiration or termination of this Agreement for any reason, the receiving party will destroy (or at the request of the disclosing party, return) all copies of all Confidential Information of the disclosing party in its possession or under its control. Despite the foregoing, the receiving party (a) shall not be required to return or destroy copies of the disclosing party’s Confidential Information from its disaster recovery and/or business continuity databases, where doing so would be commercially impracticable, and (b) may retain a single archive copy of the Confidential Information to the extent required to comply with applicable legal and regulatory requirements, provided that in either case the receiving party maintains the Confidential Information in compliance with the terms of this Agreement until destroyed, which shall occur as soon as reasonably practicable.

8. Term and Termination.

8.1 This Agreement shall continue until terminated in accordance with the provisions of this Section 8.

8.2 This Agreement, and any license granted thereby, may be terminated:

(a) immediately by either party if the other party commits any material breach of any term of this Agreement and which (in the case of a breach capable of being remedied) shall not have been remedied within fifteen (15)days of a written request to remedy the same;

(b) immediately by either party if: (i) all or a substantial portion of the assets of the other party are transferred to an assignee for the benefit of creditors, to a receiver, or to a trustee in bankruptcy; or (ii) a proceeding is commenced by or against the other party for relief under bankruptcy or similar laws and such proceeding is not dismissed within one hundred twenty (120) days;

(c) By Mattermost upon its reasonable determination that Licensee’s Use of the Product Materials or Services violates any applicable law or regulation; or

(d) by Mattermost upon giving not less than sixty (60)days’ notice to the Licensee so long as at the time of notice there are no Orders accepted by Mattermost and no active Subscriptions then outstanding.

8.3 Any termination of this Agreement pursuant to this Paragraph 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.

8.4 Upon termination of this Agreement, Licensee shall destroy (or, at the Licensee’s sole option, return) all copies of the Product Materials in its possession or control and a duly authorized officer of the Licensee shall certify in writing to Mattermost that the Licensee has complied with such obligation.

8.5 Those provisions, which by their nature survive termination, shall continue after termination or expiration of this Agreement. Those provisions include, but are not necessarily limited to: Sections 2.1, 2.2, 2.3(b), 2.4 , 3.1-3.3, 3.4 (with respect to the final calendar quarter of this Agreement), 4.4, 4.5, 5, 7, 8.3-8.6, 9 and 12, all associated definitions and all accrued rights to payment.

8.6. Termination is not an exclusive remedy for breach of this Agreement by either party. All other remedies will be available to the non-breaching party whether or not the non-breaching party terminates this Agreement for breach by the other party.

9. Import and Export Regulations. The Licensed Software and all Updates are subject to U.S. export controls, specifically the Export Administration Regulations. Both parties shall comply with all relevant import and export regulations, including those adopted by the Bureau of Industry and Security of the U.S. Department of Commerce. Licensee shall not transfer, export or re-export, directly or indirectly, the Licensed Software or any Update to any Prohibited Entity, and Licensee affirms that it is not a Prohibited Entity or acting on behalf of any Prohibited Entity (as defined under U.S. laws and regulations).

10. Privacy and Security

10.1 No Personal Data. The parties agree that, unless otherwise agreed to in writing, and except for limited information (name, email address) required when setting up user or administrator accounts, neither party shall provide data to the other party which is or may be subject to regulation under U.S. or international privacy rules and regulations. The transmission or sharing of any such data, if any, shall be subject to the provisions of a separately negotiated and signed data privacy agreement.

10.2 Security Standards. In any event, Mattermost will, taking into account the nature of the personal data and the risks involved in the processing of any such personal data, maintain reasonable and appropriate security measures, including technical and organizational safeguards designed to (a) ensure the security and confidentiality of personal data.

10.3 Licensee or its Registered Authorized Users have and will retain sole responsibility for: (a) Licensee’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Licensee or through the use of third-party services.

11. 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, 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.  Miscellaneous.

12.1 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 nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.

12.2 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, or 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).

12.3. 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. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.

12.4 Successors. This Agreement shall be binding upon and inure for the benefit of the successors in title of the parties hereto.

12.5 Assignment and Sublicensing. Licensee shall not assign, transfer or sublicense this Agreement or any of its rights or obligations hereunder without the prior written consent of Mattermost. Despite the foregoing, either may assign this Agreement without such 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; provided that Licensee may not assign, transfer or sublicense this Agreement or any of its rights or obligations hereunder to any competitor of Mattermost as determined in Mattermost’s reasonable discretion. In addition, Mattermost may assign its right to payment hereunder or grant a security interest in this Agreement or such payment right to any third party.

12.6 Headings. Headings to paragraphs or sections in this Agreement are for the purpose of information and identification only and shall not be construed as forming part of this Agreement.

12.7 Governing Law; Arbitration. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of law provisions thereof. The sole venue for any dispute, claim or controversy arising out of or relating to this Agreement shall be in the courts of San Mateo County, California.

12.8 Third Party Rights. This Agreement does not, and is not intended to, confer any benefit on, nor create any right exercisable or enforceable by, any third party.

12.9 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.

12.10 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.

12.11 Amendments. This Agreement may be modified, replaced or rescinded only in writing, and signed by a duly authorized representative of each party.

12.12 Insurance. During the Term of this Agreement, Mattermost shall carry commercial general liability and professional errors and omissions liability coverage. Professional errors and omissions insurance will be not less than One Million US Dollars ($1,000,000) combined single limit per occurrence for bodily injury, death and property damage and Two Million US Dollars ($2,000,000) in aggregate.

Mattermost’s Commercial General Liability Insurance and Professional Errors and Omissions Insurance shall provide coverage on primary, non-contributing, occurrence basis not endorsed to exclude coverage. Upon written request of Licensee, Mattermost shall provide a valid certificate of insurance which names Licensee as additional insured under applicable Mattermost insurance policies.

12.13 U.S. Government Rights. Mattermost does not develop any technical data or computer software pursuant to this Agreement. In addition, the Licensed Software and Services are  commercial products that were developed at private expense by Mattermost. The Licensed Software and Documentation are “commercial items” as that term is defined at FAR 2.101. If Customer or a Registered Authorized User is a U.S. Federal Government (Government) Executive Agency (as defined in FAR 2.101), Mattermost provides the Licensed Software and Documentation, including any related software, technology, technical data, and/or professional services, in accordance with this Section 12.14. If acquired by or on behalf of any Executive Agency (other than an agency within the Department of Defense (DoD), the Government acquires, in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software),  only those rights in technical data and software customarily provided to the public as defined in this Agreement. If acquired by or on behalf of any Executive Agency within the DoD, the Government acquires, in accordance with DFARS 227.7202-3 (Rights in commercial computer software or commercial computer software documentation), only those rights in technical data and software customarily provided in this Agreement. In addition, except under any GSA schedule contract, DFARS 252.227-7015 (Technical Data – Commercial Items) applies to technical data acquired by DoD agencies. Any Federal Legislative or Judicial Agency shall obtain only those rights in technical data and software customarily provided to the public as defined in this Agreement. If any Federal Executive, Legislative, or Judicial Agency has a need for rights not conveyed under the terms described in this Section 12.14, it must negotiate with Mattermost to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement to be effective.  This U.S. Government Rights clause in this Section 15.7 is in lieu of, and supersedes, any other FAR, DFARS, or other clause, provision, or supplemental regulation that addresses Government rights in computer software or technical data under this Agreement.

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 PURCHASE 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 LICENSEE PURCHASE ORDER ARE EXPRESSLY REJECTED AND SHALL NOT BE CONSIDERED AN AMENDMENT TO THIS AGREEMENT.

Exhibit A

Certain Definitions

“Delivery” means the availability of the Product Materials by Mattermost to the Licensee via electronic or other means, without regard to when Licensee actually installs or uses such Product Materials.

Documentation” means the instruction manuals, user guides, training materials or other materials and information made available to Licensee from time to time by Mattermost, in either printed or electronic form.

“Licensed Software” means the software licensed by Licensee pursuant to this Agreement.

“Licensee Data” means all information, content and data provided by or on behalf of Licensee and made available or otherwise distributed through use of the Licensed Software and Services.

“Mattermost Proprietary Software” meanscomputer programs included in the Licensed Software on which Mattermost claims the copyright to the source code and which is not made available under a Public Software License. A list of components included in the Licensed Software can be viewed at https://about.mattermost.com/components/.

“Normal Business Hours” means 9AM to 5PM, Pacific Time, Monday through Friday, excluding Mattermost holidays.

“Order” means any document agreed to between the parties which sets forth the Product Materials licensed by the Licensee and any relevant pricing and applicable additional restrictions (if any), including (i) any Mattermost quote which the parties agree to make a part of this Agreement, (ii) any Licensee purchase order accepted by Mattermost, and (iii) any invoice issued by Mattermost and accepted by Licensee. An Order may be amended only by a writing signed by authorized representatives of both parties. Multiple Orders may be entered agreed to under this Agreement.

Product Materials” means the Licensed Software and the Documentation.

“Public Software License” means any license that provides for free software, open source software, or similar licensing model, including but not limited to the GNU Lesser/Library GPL (LGPL), the MIT license, the Apache license, the BSD License and other similar licenses. A list of components licensed under Public Software licenses and included in the Licensed Software can be viewed at https://about.mattermost.com/components/.

“Registered Authorized User” means any employee, agent, supplier or contractor of Licensee who activates a validly assigned license key on a single production server (or single cluster of production servers) which access a single database. Each Registered Authorized User must use a unique identity to access and use the Licensed Software unless otherwise licensed, and may access the services only to the extent licensed by Licensee. For purposes of clarity, any single employee, agent, supplier or contractor of Licensee who activates a single license key on any server or cluster of servers, so that such employee, agent, supplier or contractor accesses more than one database with respect to the Licensed Software, shall be counted as more than one Registered Authorized User.

“Services” means Licensed Software and related services accessed by Registered Authorized Users, in a manner consistent with Mattermost’s published Documentation and this Agreement.

Specifications” means those technical specifications in respect of the Licensed Software which are published by Mattermost and are in effect at the time of Delivery. Mattermost shall have the right at its discretion to change or amend the Specifications to correct errors or to otherwise align the Specifications with applicable changelogs.

Subscription” means licenses to the Product Materials, Updates and Support Services. A Subscription includes access to currently supported versions of the Licensed Software for the term of the Subscription.

“Support Hours” means Mattermost’s Normal Business Hours (or such other extended support hours as Licensee may purchase from Mattermost during the term of the Agreement).

Support” shall mean those terms set forth at https://about.mattermost.com/support/.

“Update” means such enhancements, modifications, or additions to the Licensed Software as may be made available from time to time by Mattermost to Licensee.

Use” shall mean the legal use by Licensee of the Product Materials and/or Services in accordance with the terms and condition of this Agreement to manage internal corporate communications.

V2020-08-22.1

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