Last Updated: September 2, 2026

Software Support Services Terms

Schedule B

Software Support Services Agreement

This Software Support Services Agreement (this “Agreement”) is entered into by and between RavenTek Solution Partners, LLC, a Virginia limited liability company with offices located at 20405 Exchange Street, Suite 300, Ashburn, Virginia 20147 (“Provider” or “RavenTek”), and the customer identified in the applicable Order Form (“Customer”). This Agreement is made available by Provider and is accepted by Customer through clickwrap, online acceptance, submission or execution of an Order Form that references or incorporates this Agreement, receipt or use of the Services, or another electronic acceptance mechanism presented by Provider, as this Agreement may be updated or replaced by Provider in accordance with Section 15.11. By accepting this Agreement through any such mechanism, Customer agrees to be bound by its terms and conditions, and the individual accepting represents that they have the authority to bind Customer. The Effective Date is the date on which Customer first accepts this Agreement through any mechanism described above or the effective date stated in the applicable Order Form, whichever is earlier. Customer’s legal name, entity type, jurisdiction of organization, address, notice details, and all commercial terms (including Fees, scope of Services, Optional Support Services, Designated Environment, service levels, support hours, escalation paths, Technical Contacts, and Term) are set forth in the applicable Order Form, SOW, and Exhibits, each of which is incorporated into and made a part of this Agreement. Provider and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”

WHEREAS, Customer is licensing or otherwise authorized to use Talon from Provider under the ManagedDEX EULA and an applicable Order Form; and

WHEREAS, Customer desires to obtain software support services and, if ordered, managed digital employee experience, endpoint optimization, and remediation services from Provider for Talon, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Definitions

Capitalized terms used but not defined in this Agreement have the meanings given to them in the ManagedDEX EULA. For purposes of this Agreement, the following terms have the following meanings:

“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.

“Affiliate” means, with respect to a Party, any Person that directly or indirectly controls, is controlled by, or is under common control with, that Party. For this purpose, “control” means the direct or indirect ownership of more than fifty percent (50%) of the voting securities or other equity interests of a Person, or the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise. A Person is an Affiliate only for so long as that control subsists.

“Confidential Information” has the meaning set forth in Section 6.1.

“Customer Failure” has the meaning set forth in Section 3.4.

“Customer-Authorized Data Sources” means Aternity tenants, Microsoft services, endpoint management systems, ticketing systems, identity, security, observability, log, telemetry, and other data sources, tenants, APIs, feeds, systems, or platforms that Customer identifies in an Order Form, SOW, approved runbook, ticket, change-control record, or other written authorization for Provider to access, ingest, process, analyze, or use in connection with Talon or the Services.

“Customer Indemnitee” has the meaning set forth in Section 11.1.

“Deliverables” means reports, configurations, scripts, playbooks, dashboards, recommendations, service records, and other work product that Provider provides or makes available to Customer in connection with the Services, excluding Talon, Updates, Documentation, and Provider Technology.

“Designated Environment” means the Customer endpoints, users, tenants, systems, networks, Customer-Authorized Data Sources, Third-Party Platforms, and facilities identified in the applicable Order Form, SOW, or Exhibit A for receipt of the Services.

“Documentation” has the meaning given in the ManagedDEX EULA and includes Provider’s knowledge base articles and service descriptions relating to the Services that Provider provides or makes available to Customer in any form or medium, including at https://docs.talonmsp.com (or in-console at https://msp.talonmsp.com/docs).

“Effective Date” has the meaning set forth in the preamble.

“Error” means a reproducible failure of Talon to perform in substantial conformity with the specifications set forth in the Documentation, whose origin can be isolated to Talon and not to Customer systems, Customer-Authorized Data Sources, Third-Party Platforms, data feeds, credentials, connectivity, policies, or other excluded causes.

“Fees” has the meaning set forth in Section 7.1.

“First Line Support” means, in connection with the identification, diagnosis, and correction of Errors, the provision of: (a) ticket portal and email assistance, with telephone escalation for Severity Level One Incidents; (b) Remote Services; and (c) access to technical information for proper use of Talon and the Services.

“Force Majeure Event” has the meaning set forth in Section 14.1.

“Incident” means a support request that begins when Customer contacts Provider to report one specific Error or ManagedDEX service issue and ends when Provider either: (a) Resolves the Error or service issue; (b) determines in its reasonable discretion that the Error or service issue cannot be Resolved by Provider; or (c) identifies the issue as outside the scope of the Services or arising from Customer systems, Customer-Authorized Data Sources, Third-Party Platforms, credentials, permissions, or other Customer-controlled dependencies.

“Indemnitee” has the meaning set forth in Section 11.3.

“Indemnitor” has the meaning set forth in Section 11.3.

“Initial Term” has the meaning set forth in Section 9.1.

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement or rule of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

“Loss” means all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

“Maintenance Release” means an Update, as defined in the ManagedDEX EULA, that Provider may provide to Customer from time to time during the Term if included in the applicable Services, but does not include any New Version.

“ManagedDEX EULA” means the ManagedDEX Clickwrap Software End User License Agreement made available by Provider and accepted by Customer or its Authorized Users through clickwrap, online acceptance, installation, use, submission of an Order Form that references the ManagedDEX EULA, or another electronic acceptance mechanism presented by Provider, as may be updated or replaced in accordance with its terms.

“New Version” means any new version of Talon that Provider may from time to time introduce and market generally as a distinct licensed product (as may be indicated by Provider’s designation of a new version number), and which Provider may make available to Customer at an additional cost under a separate written agreement.

“Normal Business Hours” means 9:00 a.m. to 5:00 p.m., Eastern Time (accounting for Eastern Standard Time or Eastern Daylight Time, as applicable), Monday through Friday, excluding holidays observed by RavenTek.

“Open Source Components” means any software component that is subject to any open source license agreement, including any software available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative.

“Open Source License” has the meaning set forth in Section 2.10.

“Optional Support Services” means any ManagedDEX, professional services, implementation, integration, advisory, reporting, endpoint optimization, endpoint remediation, or other services set out in Exhibit A or an applicable SOW, and any other services to Customer under this Agreement that Customer and Provider may from time to time agree on in writing.

“Payment Failure” has the meaning set forth in Section 9.3(a).

“Provider Indemnitee” has the meaning set forth in Section 11.2.

“Provider Personnel” means Provider’s and its Affiliates’ and Subcontractors’ employees, officers, directors, consultants, agents, and independent contractors engaged in the provision of the Services.

“Provider Technology” means Talon, Documentation, Updates, Remote Access Software, connectors, agents, scripts, playbooks, runbooks, templates, workflows, methods, processes, know-how, tools, configurations, dashboards, reports, recommendations, improvements, modifications, derivative works, and aggregated or anonymized insights developed, owned, or provided by Provider, but excludes Customer Data.

“Reimbursable Expenses” has the meaning set forth in Section 7.4.

“Remote Access Software” has the meaning set forth in Section 2.4.

“Remote Services” means the delivery of Services remotely over the internet through the use of Talon, Remote Access Software, secure administrative access, APIs, connectors, agents, scripts, or other tools that Provider accesses or uses with the Customer’s cloud tenants, the DEX platform, and Customer-Authorized Data Sources accessed by API, and Third-Party Platforms.

“Renewal Term” has the meaning set forth in Section 9.2.

“Representatives” means, with respect to a Party, that Party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors.

“Resolve” means the provision of: (a) Services that, in Provider’s reasonable discretion, correct the Error or ManagedDEX service issue; (b) information to Customer that corrects the Error or service issue; (c) information to Customer on how to obtain a software solution that corrects the Error or service issue; (d) notice to Customer that the Error or service issue is caused by a known, unresolved issue, third-party platform issue, data-feed issue, Customer-controlled environment issue, or incompatibility issue with Talon; (e) information to Customer that identifies the Error as being corrected by upgrading to a newer release of Talon; or (f) notice to Customer that the Error or service issue has been identified as arising out of or resulting from a Service Exception.

“Respond” means Provider’s initial communication with Customer, whether by telephone, email, ticket portal, or otherwise, acknowledging Customer’s request for Services in connection with a specific Error or ManagedDEX service issue. “Response” has a correlative meaning.

“Second Line Support” means, in connection with the identification, diagnosis, and correction of Errors or ManagedDEX service issues, the provision of advanced remote or, if expressly ordered, on-site technical support at Customer’s Designated Environment.

“Services” has the meaning set forth in Section 2.

“Service Exception” has the meaning set forth in Section 4.

“Severity Level One Incident” means an Error or ManagedDEX service issue that causes Talon not to operate or materially prevents delivery of ordered ManagedDEX services and has a critical impact on Customer’s business operations.

“Severity Level Two Incident” means an Error or ManagedDEX service issue that results in a lack of Talon functionality or material degradation of significant aspects of ordered ManagedDEX services and materially degrades significant aspects of Customer’s business operations.

“Software” or “Talon” has the meaning given in the ManagedDEX EULA and refers to RavenTek’s proprietary Windows optimization and remediation utility and complementary enhancement, middleware, remediation/orchestration, and managed-service enablement layer, including any Updates provided to Customer pursuant to the ManagedDEX EULA or applicable Order Form. “ManagedDEX” has the meaning given in the EULA and consists collectively of Talon, the Aternity software and services made available by Provider to Customer under Provider’s license from Riverbed as a component of the offering (the “Bundled Aternity Component”), and the Services. For clarity, Talon installs no software on Customer endpoints or servers. Any Aternity instance that Customer separately elects to connect using its own subscription, and the endpoint agents deployed under such Customer subscription, are licensed and deployed under Customer’s own subscriptions and constitute Customer-Authorized Data Sources and Third-Party Materials.

“Statement of Work” or “SOW” means a statement of work executed by the Parties that describes specific Services, deliverables, timelines, and other terms applicable to a particular project or engagement under this Agreement. A form SOW is attached to this Agreement as Exhibit A

“Subcontractor” has the meaning set forth in Section 2.9.

“Term” means the Initial Term together with any Renewal Terms.

“Technical Contact” has the meaning set forth in Section 5.7.

“Third-Party Materials” means materials and information, in any form or medium, that are not proprietary to Provider, including Third-Party Platforms, Microsoft services, endpoint management, identity, security, observability, ticketing, and other Customer-authorized third-party platforms, Customer-Authorized Data Sources, data feeds, APIs, tenants, software, hardware, systems, networks, products, facilities, equipment, or devices, and any third-party documents, data, content, specifications, accessories, components, parts, or features of any of the foregoing.

“Third-Party Platform” means any third-party technology, platform, service, software, system, tenant, API, data feed, product, account, environment, or service provider, including Microsoft services, endpoint management, identity, security, observability, ticketing, cloud, AI, machine learning, analytics, and support platforms, that is not owned or controlled by Provider and that Customer authorizes, directs, or permits Provider to access, use, integrate with, or receive data from in connection with Talon or the Services. Any Aternity instance that Customer separately elects to connect using its own subscription is a Third-Party Platform.

2. Services

Subject to the terms and conditions of this Agreement, the ManagedDEX EULA, and each applicable Order Form or SOW, and conditioned on Customer’s and its Representatives’ compliance therewith, Provider will provide Talon support services and any ordered Optional Support Services to Customer in the Territory as set forth in this Section 2 (the “Services”) during the Term.

The Services may include, as ordered: (a) Talon implementation, configuration, troubleshooting, Maintenance Releases, and technical support; (b) Windows endpoint optimization, remediation, and digital experience analysis; (c) ManagedDEX monitoring, triage, recommendations, reporting, and operational support; (d) Customer-authorized ingestion, normalization, analysis, or use of Customer-Authorized Data Sources, including Aternity, Microsoft, endpoint, ticketing, security, identity, or other data feeds; and (e) professional services described in an applicable SOW. Service levels, support hours, escalation paths, and any enhanced support levels will be as set forth in the service levels section of Exhibit A or the applicable SOW.

2.1. Scope of Services

During the Term Provider will use commercially reasonable efforts to Resolve Incidents reported by Customer and to perform ordered ManagedDEX services as follows:

  1. Provider will provide First Line Support and Second Line Support for Talon and ordered ManagedDEX services in the amounts (if any), per the periods, and at the location (remotely or at Customer’s Designated Environment) set forth in Exhibit A or the applicable SOW;
  2. Provider, in its reasonable discretion, will determine the amount of time it will need to spend to attempt to Resolve any specific Incident, subject to any service-level, hours, and escalation commitments in Exhibit A or the applicable SOW;
  3. Provider will initially provide First Line Support to Customer to attempt to Resolve the reported Incident; and
  4. will subsequently provide such, if any, Second Line Support as Provider, in its reasonable discretion, deems necessary to attempt to Resolve the Incident.

2.2 Response Time

During the Term Provider shall use commercially reasonable efforts to Respond to Incidents reported by Customer within the following timeframes, unless different response, support-hour, or escalation commitments are stated in Exhibit A or the applicable SOW:

    1. for a Severity Level One Incident, within the Severity Level One response time set forth in Exhibit A or the applicable SOW during Normal Business Hours; provided that, where the applicable Order Form expressly elects the after-hours Severity Level One on-call option (available as a priced uplift), Provider will Respond to Severity Level One Incidents reported outside Normal Business Hours within the after-hours Severity Level One response time stated in that Order Form; and provided further that this clause applies unless Exhibit A or the applicable SOW expressly provides for 24/7 support; and
    2. for a Severity Level Two Incident, within the Severity Level Two response time set forth in Exhibit A or the applicable SOW during Normal Business Hours, unless Exhibit A or the applicable SOW expressly provides for 24/7 support.

2.3 Service Credits

If Provider fails to meet a Response time target set forth in Section 2.2 or Exhibit A in a given calendar month, Customer will be eligible for a service credit in the amount set forth in Exhibit A for each such missed target, subject to the monthly aggregate service-credit cap set forth in Exhibit A. To be eligible, Customer must request the service credit in writing within the service-credit claim period set forth in Exhibit A, identifying the affected Incident(s) and the missed target(s) in reasonable detail. Service credits will be calculated as a percentage of the monthly support Fee for the affected Services and will be applied against future Fees payable by Customer; service credits are not refunds and do not entitle Customer to any payment. Service credits are Customer’s sole and exclusive remedy, and Provider’s sole liability, for any failure by Provider to meet any Response time target or other service level under this Agreement, Exhibit A, or any applicable SOW. For the avoidance of doubt, and consistent with Section 3.2, Provider makes no resolution commitment and service credits do not apply to resolution times or to any ManagedDEX recommendation or remediation outcome.

2.4 Remote Services

Customer acknowledges and agrees that Provider may provide Remote Services to Customer to assist in analyzing and Resolving any Incident and performing ordered ManagedDEX services. Customer agrees to provide Provider with authorized access, accounts, credentials, API keys, tenant permissions, connectors, network access, and other information reasonably necessary for Provider to provide the Remote Services to the Customer’s cloud tenants, the DEX platform, and Customer-Authorized Data Sources accessed by API, and Third-Party Platforms, including any Customer Aternity tenant or Aternity data source identified in the applicable Order Form or SOW. Remote Access Software and related Talon components may collect and transmit to Provider diagnostic, technical, usage, endpoint, performance, telemetry, ticketing, configuration, and related information, including Customer Data and Customer-authorized data from Aternity, Microsoft, endpoint, security, identity, observability, ticketing, or other Third-Party Platforms, relating to or derived from Customer’s use of Talon, the Services, or Customer’s Designated Environment. Customer acknowledges and agrees that: (a) Provider may collect, maintain, process, transmit, and use this information in the course of performing the Services under this Agreement and as permitted by the ManagedDEX EULA, provided that Provider shall only access, control, and gather such information that it reasonably believes to be necessary to provide the Services; (b) Provider may use hosted AI, machine learning, or large language model services and related Subcontractors to summarize, classify, analyze, or generate service outputs from Customer Data and Customer-Authorized Data Sources solely to provide Talon and the Services, and Provider will not use Customer Data or Customer-Authorized Data Sources to train general-purpose AI or machine learning models unless Customer separately authorizes that use in an Order Form, SOW, or other writing; and (c) Talon installs no software on Customer endpoints or servers, and any connectors, configurations, or API integrations established for the Services reside within Provider’s hosted Talon platform and within the Customer’s cloud tenants and Customer-Authorized Data Sources (as API integrations using Customer-supplied credentials), and such integrations will be revoked or disabled on termination unless otherwise stated in the applicable SOW or required by the ManagedDEX EULA. For clarity, the endpoint agents of the supported DEX tools (including Aternity) are licensed and deployed under Customer’s own subscriptions, constitute Customer-Authorized Data Sources and Third-Party Materials, and are not Talon or Talon components. At all times Customer’s information will be treated in accordance with Provider’s privacy policy, data processing addendum, or security exhibit, as applicable, attached as Exhibit B and, with respect to Provider’s privacy policy, available at https://talonmsp.com/privacy, in each case as further described in Section 6.4.

2.5 Optional Support Services

Provider may provide Optional Support Services to Customer on Customer’s request pursuant to an applicable Order Form, SOW, or written authorization, at Provider’s rates stated therein or, if not stated, Provider’s standard hourly rates then in effect. The terms and conditions of this Agreement govern the provision of any Optional Support Services delivered by Provider to Customer.

2.6 Training

Provider will make available to Customer, as standard product materials included with the Services and forming part of the Documentation, an onboarding guide, online (self-serve) training, and help files relating to Talon and any ordered ManagedDEX services, at no additional charge. Any instructor-led or other bespoke enablement or training is not included and will be provided only as an Optional Support Service, quoted separately and subject to any discount Provider may offer, pursuant to an applicable Order Form, SOW, or written authorization at Provider’s rates stated therein or, if not stated, Provider’s standard hourly rates then in effect. Instructor-led training will be provided remotely or at a Designated Environment during Normal Business Hours on a date or dates to be mutually agreed on by the Parties.

2.7 Maintenance Releases

During the Term, Provider will provide Customer with Maintenance Releases only to the extent included in the applicable Order Form, SOW, or ManagedDEX EULA, and each Maintenance Release will be deemed Talon and an Update under the ManagedDEX EULA. Customer does not have any right under or in connection with this Agreement to receive any New Versions of Talon that Provider may, in its sole discretion, release from time to time.

2.8 Service Changes

Provider may change any aspect of the Services or their performance on thirty (30) days’ prior written notice to Customer, provided that no such change materially reduces or otherwise has a material adverse effect on the: (a) Provider’s level of effort in performing the Services; (b) Provider’s obligation to provide the Services under this Agreement; or (c) Customer’s rights under this Agreement.

2.9 Subcontractors

Provider may, in its reasonable discretion, perform any of the Services by or through third parties (each, a “Subcontractor”), including AI, machine learning, cloud, hosting, analytics, security, and support service providers disclosed in Provider’s applicable subprocessor or subcontractor materials, or any other Provider Personnel, provided that Provider remains responsible for Subcontractors’ performance of the Services as required by this Agreement. Customer authorizes Provider to use such Subcontractors in connection with Talon and the Services, subject to Exhibit B for any Subcontractor that Processes Personal Information as a sub-processor.

2.10 Open Source Components

Talon, the Services, and the Deliverables may include Open Source Components. All such Open Source Components are licensed under permissive open source licenses (including the MIT License, the Apache License, Version 2.0, the ISC License, and BSD-style licenses) or under the Mozilla Public License, Version 2.0 (“MPL-2.0”) (each, an “Open Source License”), and none are licensed under the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), GNU Affero General Public License (AGPL), Server Side Public License (SSPL), or any other strong or network copyleft license. Provider maintains a current bill of materials (in CycloneDX or SPDX format) identifying the Open Source Components and their applicable Open Source Licenses, which Provider will make available to Customer on written request. Any use of the Open Source Components by Customer is governed by, and subject to, the terms and conditions of the applicable Open Source License; use of the permissively licensed Open Source Components requires only preservation of the applicable copyright and license notices. With respect to the MPL-2.0 components, which Provider uses in unmodified form and whose source code is publicly available from the applicable upstream repositories, Provider will, on written request to Provider, provide Customer with, or identify the location from which Customer may obtain, a complete, machine-readable copy of the source code for such components in accordance with the terms of the MPL-2.0, at no cost to Customer.

3. Limitations

3.1 Incidents

Provider has the sole right to determine, in its reasonable discretion: (a) what constitutes an Incident; and (b) when an Incident is deemed to be Resolved. Except for the Bundled Aternity Component, which Provider makes available to Customer as a component of ManagedDEX under Provider’s license from Riverbed, Customer is responsible for obtaining and maintaining all rights, licenses, subscriptions, consents, permissions, credentials, tenant authorizations, API access, and approvals necessary for Provider to access or use Microsoft, endpoint, ticketing, identity, security, observability, or other Third-Party Platforms or Customer-Authorized Data Sources (including any Aternity instance that Customer separately elects to connect using its own subscription) in connection with the Services, and Customer represents that such access and use by Provider is authorized under Customer’s agreements with the applicable third-party providers. Customer shall not provide or authorize Provider to use any Riverbed confidential information, Riverbed-owned technology, Riverbed Data, non-public Riverbed support exports, non-public Riverbed reports, or non-public Riverbed partner materials except to the extent Customer has the right to do so and the use is expressly identified in an Order Form, SOW, approved runbook, ticket, change-control record, or other writing. Except for the Bundled Aternity Component that Provider makes available as a component of ManagedDEX under Provider’s license from Riverbed, Provider will not knowingly resell, sublicense, or provide any Riverbed product or service to Customer under this Agreement, and Customer acknowledges that the Services are limited to Talon, the Bundled Aternity Component, and RavenTek-provided support, ManagedDEX, and professional services. Provider will not implement production remediation actions, endpoint changes, policy changes, or other material changes to Customer’s Designated Environment except as authorized by Customer through the applicable SOW, approved runbook, ticket, change-control process, or other written approval.

3.2 Response Time and Resolution

Provider will use commercially reasonable efforts to: (a) Respond within the applicable Response time provided in Section 2.2, including any after-hours Severity Level One response time stated in the applicable Order Form where the after-hours Severity Level One on-call option is elected; and (b) Resolve an Incident, but does not guarantee that it will be able to Respond within that specific time period, that any Incident will be Resolved, or that any ManagedDEX recommendation or remediation will achieve a particular business, endpoint, security, or performance outcome.

3.3 On-site Visits

Provider will provide on-site Second Line Support only at the applicable Designated Environment during Normal Business Hours, unless otherwise agreed to by Provider in writing.

3.4 Effects of Customer Failure or Delay

Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by any delay or failure to perform any of Customer’s obligations under the ManagedDEX EULA, any applicable Order Form or SOW, third-party platform terms, or this Agreement in accordance with the respective terms and conditions of those agreements (each, a “Customer Failure”).

4. Exceptions

Provider has no obligation to provide Services relating to Errors that, in whole or in part, arise out of or result from any of the following (each a “Service Exception”):

  1. Talon, or the media on which it is provided, that is modified or damaged by Customer or any third party;
  2. any operation or use of, or other activity relating to, Talon other than as specified in the
  3. Documentation, including any incorporation in Talon of, or combination, operation, or use of Talon in or with, any technology (including any software, hardware, firmware, system, network, data feed, tenant, API, or platform) or service not specified for Customer’s use in the Documentation, unless otherwise expressly permitted in writing by Provider;
  4. any Third-Party Materials, including outages, unavailability, degradation, rate limits, API changes, data-quality issues, licensing restrictions, permission changes, vendor policy changes, or other acts or omissions of Microsoft, endpoint, identity, security, observability, ticketing, or other Third-Party Platforms or providers; provided that, with respect to the Bundled Aternity Component, Provider will use commercially reasonable efforts to pass through to Customer the support, maintenance, and remediation remedies that Provider receives from Riverbed, and Provider’s obligations in respect of the Bundled Aternity Component are limited to that pass-through;
    any negligence, abuse, misapplication, or misuse of Talon or the Services other than by Provider Personnel, including any Customer use of Talon other than as specified in the Documentation or expressly authorized in writing by Provider;
  5. any Customer Failure, including Customer’s failure to promptly install any Maintenance Release that Provider has previously made available to Customer;
    the operation of, or access to, Customer’s or a third party’s system, network, tenant, endpoint, credentials, data feed, or platform;
  6. any relocation, installation, integration, configuration, remediation, script execution, endpoint change, policy change, or production change relating to Talon or the Services other than by Provider Personnel or as approved in Customer’s change-control process;
  7. any Open Source Components, beta software, software that Provider makes available for testing or demonstration purposes, temporary software modules, or software for which Provider does not receive a license fee;
    any breach of or noncompliance with any material provision of this Agreement, the ManagedDEX EULA, an applicable Order Form or SOW, or third-party platform terms by Customer or any of its Representatives; or
    any Force Majeure Event (including abnormal physical or electrical stress).

5. Customer Obligations

5.1 Notification

Customer shall promptly notify Provider of any Error or ManagedDEX service issue and provide Provider with reasonable detail of the nature and circumstances of the Error or service issue.

5.2 Compliance

Customer shall comply with all terms and conditions of this Agreement, the ManagedDEX EULA, each applicable Order Form or SOW, and all third-party platform terms applicable to Customer’s use of Aternity, Microsoft, endpoint, identity, security, observability, ticketing, or other Third-Party Platforms or Customer-Authorized Data Sources used with the Services, and Customer shall not request or permit Provider to access or use any Third-Party Platform or Customer-Authorized Data Source unless Customer has all rights, consents, and permissions necessary for Provider to do so for the Services.

5.3 Use

Customer shall use Talon solely in accordance with the terms and conditions set forth in the ManagedDEX EULA, the applicable Order Form, and the Documentation.

5.4 Environment

Customer shall set up, maintain, and operate in good repair and in accordance with the Documentation all environmental conditions and components, including all networks, systems, tenants, endpoints, hardware, Third-Party Platforms, and Customer-Authorized Data Sources, in or through which: (a) Talon operates; and/or (b) the Customer accesses or uses any of the Services.

5.5 Access

In connection with the performance of the Services, Customer shall provide Provider Personnel with all such cooperation and assistance as they may reasonably request, or otherwise may reasonably be required, to enable Provider to perform its obligations (including the provision of the Services), and exercise its rights, under and in accordance with the terms and conditions of this Agreement, including:

  1. reasonable, uninterrupted access, both physical and virtual, to Talon and Customer’s premises, systems, networks, endpoints, tenants, the Customer Environment, and facilities;
  2. a safe working environment;
  3. reasonable access to the appropriate Customer personnel, including network, systems, operations, and applications personnel; and
  4. all necessary authorizations, consents, licenses, permissions, credentials, tenant approvals, and change-control approvals, whether from third parties or otherwise, in connection with any of the foregoing.

5.6 Data Back-up

Customer agrees to back up all data, files, configurations, policies, endpoint images, and information prior to the performance of any Services or approved remediation actions and hereby assumes sole responsibility for any lost or altered data, files, configurations, policies, endpoint images, or information, except to the extent directly caused by Provider’s breach of this Agreement.

5.7 Technical Contact

Customer shall designate and maintain throughout the Term one or more individuals to serve as its primary point of contact for day-to-day communications, consultation, and decision-making regarding the Services (each, a “Technical Contact”). The Technical Contact(s) shall be the sole contact(s) between Customer and Provider in connection with day-to-day matters relating to the provision of Services and be responsible for reporting Incidents, providing day-to-day consents and approvals on behalf of Customer, and communicating with and providing timely and accurate information and feedback to Provider in connection with the Services. Customer shall ensure its Technical Contacts have the requisite organizational authority, skill, experience, and other qualifications to perform these duties. The Customer’s initial Technical Contacts are identified in Exhibit A. Customer shall use commercially reasonable efforts to maintain the same Technical Contacts in place throughout the Term and provide at least ten (10) days’ prior written notice to Provider of any replacement or change in the name or contact information of any Technical Contact.

5.8 Information

Customer shall provide Provider with all information reasonably requested by Provider from time to time relating to Customer’s use of Talon, Services, or Deliverables, including information on Customer’s hardware, network, systems, endpoints, tenants, the Customer Environment, change-control requirements, and any related Third-Party Materials.

5.9 Current Release

Except as otherwise specified in the ManagedDEX EULA, applicable Order Form, SOW, or this Agreement, Customer must run only the current or immediately preceding version or release level of Talon that Provider supports for similarly situated customers. Customer shall install all Maintenance Releases within thirty (30) days from the date they are made available by Provider.

5.10 Non-Solicitation

During the Term and for one (1) year after, Customer shall not, and shall not assist any other Person to, directly or indirectly, recruit or solicit (other than by general advertisement not directed specifically to any Person or Persons) for employment or engagement as an independent contractor any Provider Personnel then or within the prior twelve (12) months employed or engaged by Provider or any Subcontractor and who performed or supervised the performance of Services for Customer under this Agreement. In the event of a violation of this Section 5.10, Provider will be entitled to liquidated damages equal to thirty-three percent (33%) of the applicable employee’s or contractor’s annualized base salary or base compensation as of the date of the violation, which amount the Parties acknowledge, having considered the difficulty of ascertaining Provider’s actual damages (including recruiting, hiring, onboarding, and lost-productivity costs) at the time of contracting, is a reasonable pre-estimate of Provider’s damages and is not a penalty.

5.11 Responsibility for Representatives

Customer shall remain responsible and liable for: (a) the supervision, coordination, and performance of Customer’s Representatives in connection with this Agreement; and (b) all acts and omissions of Customer’s Representatives, each of which shall be ascribed to the Customer to the same extent as if such acts or omissions were by Customer itself. Any noncompliance by any Customer Representative with the provisions of this Agreement will constitute Customer’s breach hereof.

6. Confidentiality

6.1 Confidentiality

The confidentiality rights and obligations of the Parties are governed by Section 10 (Confidentiality) of the ManagedDEX EULA, which is incorporated into this Agreement by this reference and applies to all Confidential Information disclosed or made available under or in connection with this Agreement. Without limiting that Section: (a) Talon, Provider Technology, Documentation, Deliverables, scripts, playbooks, know-how, and technical methods are the Confidential Information of Provider; and (b) Customer Data and Customer credentials are the Confidential Information of Customer.

6.2 Data Processing; Security

As between the Parties, Customer retains all right, title, and interest in and to Customer Data. Provider may access, use, host, copy, process, transmit, display, and create derivative works from Customer Data to provide, secure, maintain, support, improve, and administer Talon and the Services; to comply with Law; to enforce Provider’s rights; and as otherwise permitted by this Agreement, the ManagedDEX EULA, or Customer’s written instructions. Provider may create, use, retain, disclose, and commercialize de-identified, anonymized, or aggregated usage, diagnostic, security, performance, telemetry, and statistical information derived from Talon, Customer Data, Customer-Authorized Data Sources, or the Services, provided that such information does not identify Customer or any individual and is not reasonably capable of being re-identified by Provider; provided, however, that, consistent with and subject to the ManagedDEX EULA, Provider will not use Customer Data or Customer-Authorized Data Sources for (i) cross-customer benchmarking or benchmarking against other customers, (ii) customer-identifiable benchmarking, (iii) comparative analytics, (iv) data monetization, or (v) the commercialization of benchmarking outputs, in each case unless Customer separately authorizes such use in an Order Form, SOW, or other writing that specifies the applicable controls. Provider will retain Customer Data only for so long as reasonably necessary to provide, secure, maintain, support, improve, and administer Talon and the Services, to comply with Law, to enforce Provider’s rights, or as otherwise permitted by this Agreement, the ManagedDEX EULA, Exhibit B, or Customer’s written instructions. Provider will maintain commercially reasonable administrative, technical, and physical safeguards designed to protect Customer Data in Provider’s possession or control against unauthorized access, use, disclosure, alteration, or destruction, including logical tenant separation for Customer environments hosted or administered by Provider. Provider will not intentionally commingle Customer Data with other customers’ data except in de-identified, anonymized, or aggregated information permitted by this Section or to the extent temporary processing in shared infrastructure is protected by logical separation and security controls. Provider will notify Customer without undue delay, and in any event within seventy-two (72) hours, after confirming a Security Incident involving Customer Data and will provide reasonable information and cooperation regarding the Security Incident, subject to Law and Provider’s security obligations. “Customer Data” has the meaning given in the ManagedDEX EULA and includes data, content, logs, telemetry, credentials, endpoint information, reports, and other information submitted by or on behalf of Customer to Talon or the Services or accessed by Provider from Customer-Authorized Data Sources. “Security Incident” means a confirmed unauthorized access to, acquisition of, or disclosure of Customer Data in Provider’s possession or control. Personal Information contained in Customer Data is Processed in accordance with the Data Protection Exhibit at Exhibit B, which is incorporated into this Agreement by this reference and which reproduces the notification commitment in this Section.

7. Fees; Payment Terms

7.1 Fees

In consideration of the Services and the rights granted by Provider to Customer under this Agreement, Customer shall pay to Provider fees and other amounts payable pursuant to this Section 7 and the applicable Order Form (Exhibit A) or SOW (“Fees”).

7.2 Fee Increases

Provider may increase Fees for any Renewal Term by providing written notice to Customer at least sixty (60) calendar days prior to the commencement of such Renewal Term, and Exhibit A will be deemed amended accordingly.

7.3 Remedial Fees

If an Error is falsely reported by or on behalf of Customer, or the cause of any Error, ManagedDEX service issue, endpoint issue, data-feed issue, or system problem is other than Talon or Provider’s breach of this Agreement, Customer shall pay Provider’s standard hourly rates then in effect for any Second Line Support or other Services provided to investigate or attempt to Resolve such Error, issue, or problem.

7.4 Reimbursable Expenses

Customer shall reimburse Provider for all out-of-pocket expenses incurred by Provider in connection with performing Second Line Support or any other on-site Services (“Reimbursable Expenses”).

7.5 Taxes

All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, service, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, local, or foreign governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income. If Customer is required by applicable Law to deduct or withhold any taxes, levies, duties, or similar charges (including any cross-border or foreign withholding tax) from any amount payable to Provider, then the amount payable by Customer will be increased as necessary so that, after Customer makes all required deductions and withholdings, Provider receives and retains an amount equal to the amount it would have received had no such deduction or withholding been required. Customer shall pay any such withheld amounts to the applicable authority in accordance with applicable Law and, on Provider’s request, promptly provide Provider with official receipts or other documentation evidencing such payment. The Parties shall reasonably cooperate to obtain the benefit of any applicable reduction or exemption from such withholding under an applicable treaty or Law.

7.6 Payment

Customer shall pay all Fees on or before the due date set forth in Exhibit A and shall pay all Reimbursable Expenses within thirty (30) days after the date of Provider’s invoice therefor. Customer shall make all payments hereunder in US dollars by wire transfer or ACH to the address or account specified in Exhibit A or such other address or account as Provider may specify in writing from time to time.

7.7 Late Payment

If Customer fails to make any payment when due, then, in addition to all other remedies that may be available to Provider:

  1. Provider may charge interest on the past due amount at the rate of 1.5% per month (12% per annum) or, if lower, the highest rate permitted under applicable Law;
  2. Customer shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payment of amounts due or related interest, including attorneys’ fees, court costs, and collection agency fees; and
  3. if such failure continues for ten (10) days following written notice thereof, Provider may suspend performance of the Services until all past due amounts, including interest, have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.

7.8 No Deductions or Setoffs

All amounts payable to Provider under this Agreement shall be paid by Customer to Provider in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).

8. Intellectual Property Rights

8.1 Intellectual Property Ownership

Customer acknowledges and agrees that:

  1. Talon, Provider Technology, and Deliverables are licensed, not sold, to Customer by Provider and Customer does not and will not have or acquire under or in connection with this Agreement any ownership interest in Talon, Provider Technology, Deliverables, or any related Intellectual Property Rights, except for Customer’s ownership of Customer Data;
  2. Provider is and will remain the sole and exclusive owner of all right, title, and interest in and to Talon, Provider Technology, Deliverables, tools, scripts, connectors, agents, playbooks, runbooks, templates, workflows, know-how, methods, processes, configurations, dashboards, reports, improvements, modifications, derivative works, and aggregated or anonymized insights, including all Intellectual Property Rights relating thereto, subject only to Customer’s ownership of Customer Data, the rights of third parties in Third-Party Materials, and the limited rights expressly granted to Customer under this Agreement and the ManagedDEX EULA; and
  3. Customer hereby unconditionally and irrevocably assigns to Provider its entire right, title, and interest in and to any Intellectual Property Rights that Customer may now or hereafter have in or relating to Talon, Provider Technology, Deliverables, or Provider-created improvements arising from or in connection with the Services (including any rights in derivative works or patent improvements relating to any of them), whether held or acquired by operation of law, contract, assignment, or otherwise, excluding Customer Data and excluding third-party rights in Third-Party Materials.

8.2 Customer Cooperation and Notice of Infringement

Customer shall, during the Term:

  1. take commercially reasonable measures to safeguard Talon, Provider Technology, and Deliverables (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access;
  2. at Provider’s expense, take all such steps as Provider may reasonably require to assist Provider in maintaining the validity, enforceability, and Provider’s ownership of the Intellectual Property Rights in Talon, Provider Technology, and Deliverables;
  3. promptly notify Provider in writing if Customer becomes aware of:
    1. any actual or suspected infringement, misappropriation, or other violation of Provider’s Intellectual Property Rights in or relating to Talon, Provider Technology, or Deliverables; or
    2. any claim that Talon, Provider Technology, or Deliverables, including any production, use, marketing, sale, or other disposition of Talon, Provider Technology, or Deliverables, in whole or in part, infringes, misappropriates, or otherwise violates the Intellectual Property Rights or other rights of any Person; and
  4. at Provider’s sole expense, fully cooperate with and assist Provider in all reasonable ways in the conduct of any claim, suit, action, or proceeding by Provider to prevent or abate any actual or threatened infringement, misappropriation, or violation of Provider’s rights in, and to attempt to resolve any claims relating to, Talon, Provider Technology, or Deliverables, including having Customer’s employees testify when requested and making available for discovery or trial relevant records, papers, information, samples, specimens, and the like.

8.3 No Implied Rights

Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any Intellectual Property Rights or other right, title, or interest in or to Talon, Provider Technology, or Deliverables.

9. Term and Termination

9.1 Initial Term

The initial term of this Agreement commences as of the Effective Date and will continue in effect for the Initial Term set forth in the Order Form (Exhibit A) unless terminated earlier pursuant to any of the Agreement’s express provisions (the “Initial Term”).

9.2 Renewal Term

This Agreement will automatically renew for the Renewal Term(s) set forth in the Order Form (Exhibit A) unless earlier terminated pursuant to any of the Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least the number of days set forth as the Non-Renewal Notice Period in the Order Form (Exhibit A) prior to the expiration of the then-current term (each a “Renewal Term” and, collectively, together with the Initial Term, the “Term”). If the Order Form does not specify a Renewal Term, each Renewal Term will be equal in length to the Initial Term, and if the Order Form does not specify a Non-Renewal Notice Period, the Non-Renewal Notice Period will be thirty (30) days, in each case consistent with the renewal terms of the ManagedDEX EULA. The Parties intend that this Agreement renew coterminously with the ManagedDEX EULA, and to the extent the renewal or non-renewal of the ManagedDEX EULA eliminates Customer’s entitlement to the Services, Section 9.3(d) governs.

9.3 Termination

This Agreement may be terminated at any time:

  1. by Provider, effective on written notice to Customer, if Customer fails to pay any amount when due under this Agreement, the ManagedDEX EULA, or the applicable Order Form or SOW, where such failure continues more than ten (10) days after Provider’s delivery of written notice thereof (“Payment Failure”);
  2. by Provider, immediately on written notice to Customer if any two (2) or more Payment Failures occur in any twelve (12) month period;
  3. by either Party, effective on written notice to the other Party, if the other Party materially breaches this Agreement or, solely with respect to Customer, the ManagedDEX EULA, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach;
  4. automatically, effective immediately, on the expiration or earlier termination of the ManagedDEX EULA or the applicable Order Form or SOW to the extent such expiration or termination eliminates Customer’s entitlement to receive the Services; or
  5. by Provider, effective immediately, if the Customer: (i) is dissolved or liquidated or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay its debts as they become due; (iii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency Law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.

9.4 Effect of Termination or Expiration

On the expiration or earlier termination of this Agreement:

  1. all rights, licenses, and authorizations granted to Customer hereunder will immediately terminate and Customer shall:
    1. immediately cease all use of and other activities with respect to Provider’s Confidential Information relating to the Services and, if this Agreement is terminated automatically pursuant to Section 9.3(d) or by Provider pursuant to Section 9.3(a), (b), (c), or (e), Talon, Provider Technology, and Deliverables, other than those described in Section 9.4(a)(ii) or expressly permitted by the surviving ManagedDEX EULA and applicable Order Form; and
    2. within thirty (30) days deliver to Provider, or at Provider’s written request destroy, and permanently erase from all devices and systems Customer directly or indirectly controls, Provider Technology, Deliverables, and Provider’s Confidential Information relating to the Services, including all documents, files, and tangible materials (and any partial and complete copies) containing, reflecting, incorporating, or based on any of the foregoing, whether or not modified or merged into other materials, provided that, if as of, and for so long after, the effective date of the expiration or termination of this Agreement, the ManagedDEX EULA remains in effect, Customer may retain, under the confidentiality and other terms and conditions of the ManagedDEX EULA, and solely as and to the extent permitted thereby, such, if any, copies of Talon, Deliverables, and Provider’s Confidential Information relating to Talon as are necessary for Customer’s operation and use of Talon in accordance with the Documentation; and
    3. certify to Provider in a written instrument signed by an authorized officer of Customer that it has complied with the requirements of this Section 9.4. Provider shall, on Customer’s written request, delete or return Customer Data in Provider’s possession or control in accordance with Section 6.4 and, for Personal Information contained in Customer Data, paragraph 11 of Exhibit B.
  2. all amounts payable by Customer to Provider of any kind under this Agreement are immediately payable and due no later than thirty (30) days after the effective date of the expiration or termination of this Agreement.

9.5 Surviving Terms

The provisions set forth in the following sections, and any other right, obligation, or provision under this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: this Section 9.5, Section 1 (Definitions), Section 2.10 (Open Source Components), Section 6 (Confidentiality), Section 6.4 (Data Processing; Security), Section 8 (Intellectual Property Rights), Section 9.4 (Effect of Termination or Expiration), Section 10.1 (Mutual Representations and Warranties), Section 10.3 (Warranty Remedy), Section 10.4 (Disclaimer), Section 11 (Indemnification), Section 12 (Limitations of Liability), Section 13 (Export Regulation), and Section 15 (Miscellaneous).

10. Representations and Warranties

10.1 Mutual Representations and Warranties

Each Party represents, warrants, and covenants to the other Party that:

  1. it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
  2. it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, and authorizations it grants and is required to grant under this Agreement;
  3. its acceptance of this Agreement, and its execution of any applicable Order Form or SOW, through the mechanisms described in the preamble has been duly authorized by all necessary corporate or organizational action of such Party, and the individual accepting this Agreement or executing any Order Form or SOW on its behalf has the authority to bind such Party; and
  4. when executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.

10.2 Additional Provider Representations and Warranties

Provider represents, warrants, and covenants to Customer that during the Term Provider will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar software support, ManagedDEX, and professional services and will devote adequate resources to meet its obligations under this Agreement.

10.3 Warranty Remedy

Provider’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for any breach of the warranty set forth in Section 10.2 is, at Provider’s option: (a) re-performance of the deficient Services; or (b) if Provider fails to re-perform the deficient Services in a manner that materially conforms to Section 10.2 within a reasonable period of time, refund of the Fees paid by Customer for the deficient Services. To be eligible for this remedy, Customer must notify Provider in writing of the alleged breach, in reasonable detail, within thirty (30) days after the performance of the Services giving rise to the claim. This warranty does not apply to, and Provider has no obligation with respect to, any Service Exception or any nonconformity arising from or relating to any matter described in Section 4 (Exceptions), any Customer Failure, or any Third-Party Materials.

10.4 DISCLAIMER OF WARRANTIES

EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH IN SECTION 10, TALON, THE SERVICES, AND THE DELIVERABLES ARE PROVIDED “AS IS.” THE WARRANTY DISCLAIMERS SET FORTH IN SECTION 13 (WARRANTY DISCLAIMER) OF THE MANAGEDDEX EULA, INCLUDING THE “AS IS” DISCLAIMER FOR TALON AND THE BUNDLED ATERNITY COMPONENT PASS-THROUGH AND SOLE-REMEDY PROVISIONS, ARE INCORPORATED INTO THIS AGREEMENT BY THIS REFERENCE AND APPLY EQUALLY TO THE SERVICES AND THE DELIVERABLES. WITHOUT LIMITING THE FOREGOING, PROVIDER DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHER (INCLUDING ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE), WITH RESPECT TO TALON, THE SERVICES, AND THE DELIVERABLES, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ANY WARRANTY THAT TALON, THE SERVICES, THE DELIVERABLES, OR ANY MANAGEDDEX RECOMMENDATION, REMEDIATION, SCRIPT, DASHBOARD, ALERT, REPORT, INTEGRATION, DATA INGESTION, OR DATA OUTPUT WILL MEET CUSTOMER’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL OPEN SOURCE COMPONENTS, MICROSOFT, ENDPOINT, IDENTITY, SECURITY, OBSERVABILITY, TICKETING, AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED “AS IS,” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR THEREOF.

11. Indemnification

11.1 Provider Indemnification

Provider shall indemnify, defend, and hold harmless Customer and its Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and permitted assigns (each, including Customer, a “Customer Indemnitee”) from and against any and all Losses incurred by the Customer Indemnitee arising out of or relating to any Action by a third party (other than an Affiliate of a Customer Indemnitee) to the extent that such Losses arise from any allegation in such Action that Talon, the Services, or Deliverables, as provided by Provider and used in accordance with this Agreement and the Documentation, infringe any United States Intellectual Property Right. The foregoing obligation does not apply to the extent that such Action or Losses arise from any allegation of or relating to any:

  1. Third-Party Materials;
  2. any modification, configuration, or combination of Talon, the Services, or Deliverables not made or authorized in writing by Provider;
  3. negligence, abuse, misapplication, or misuse of Talon, Provider Technology, Services, or any Deliverables other than by Provider Personnel;
  4. events or circumstances outside of Provider’s commercially reasonable control (including any bugs, defects, outages, vendor changes, or malfunctions of any third-party software, hardware, firmware, system, network, tenant, API, platform, or data feed); or
  5. act, omission, or other fact referred to in any of Section 11.2(a) through Section 11.2(d), irrespective of whether Customer is obligated to indemnify Provider as a result thereof.

11.2 Customer Indemnification

Customer shall indemnify, defend, and hold harmless Provider and its Affiliates, and each of its and their respective officers, directors, employees, agents, subcontractors, successors, and assigns (each, including Provider, a “Provider Indemnitee”) from and against any and all Losses incurred by the Provider Indemnitee in connection with any Action by a third party (other than an Affiliate of a Provider Indemnitee) to the extent that such Losses arise from any allegation in such Action:

  1. that any Intellectual Property Right or other right of any Person, or any Law, is or will be infringed, misappropriated, or otherwise violated by any:
    1. modification of Talon, Provider Technology, Services, or any Deliverables by Customer other than: (A) by Provider Personnel in connection with this Agreement; or (B) with Provider’s express written authorization and in strict accordance with Provider’s written directions and specifications;
    2. incorporation, combination, operation, or use of Talon, Services, Provider Technology, or any Deliverables by Customer with any good, service, technology, Customer-Authorized Data Source, tenant, credential, Third-Party Platform, or other matter whatsoever (including any software, hardware, firmware, system, or network) that is neither provided by Provider Personnel nor expressly authorized by Provider in any of the ManagedDEX EULA, this Agreement, the applicable Order Form or SOW, or the Documentation, unless otherwise expressly permitted by Provider in writing;
    3. good, service, technology, data, Customer-Authorized Data Source, credential, tenant, Third-Party Platform, authorization, or other matter whatsoever (including any software, hardware, firmware, system, or network) directly or indirectly provided by Customer or directed by Customer to be installed, combined, integrated, accessed, ingested, or used with, as part of, or in connection with Talon, the Services, or any Deliverables;
    4. use of Talon, Provider Technology, Services, or any Deliverables by Customer after Provider’s notice to Customer of such activity’s alleged or actual infringement, misappropriation, or other violation of a third party’s rights; or
    5. failure by Customer to timely implement any Maintenance Release, modification, update, or replacement of Talon, Provider Technology, or any Deliverables made available to Customer by or on behalf of Provider;
  2. of or relating to facts that, if true, would constitute a breach by Customer of any representation, warranty, covenant, or obligation under the ManagedDEX EULA, this Agreement, an applicable Order Form or SOW, a third-party platform agreement, or Customer’s obligation to obtain and maintain rights, licenses, consents, permissions, credentials, tenant approvals, or change-control approvals for the Services;
  3. of or relating to negligence, gross negligence, abuse, misapplication, misuse, or more culpable act or omission (including recklessness or willful misconduct) by or on behalf of Customer or any of its Representatives with respect to Talon, the Services, Provider Technology, the Deliverables, Third-Party Materials, Customer-Authorized Data Sources, remediation approvals, change-control decisions, or otherwise in connection with this Agreement; or
  4. of or relating to use of or other act relating to Talon, the Services, Provider Technology, the Deliverables, Customer Data, or Third-Party Materials by or on behalf of Customer that is: (i) outside the scope of Customer’s license under the ManagedDEX EULA or the purpose, scope, or manner of use authorized by the ManagedDEX EULA, this Agreement, the applicable Order Form or SOW, or the Documentation; or (ii) in any manner contrary to Provider’s instructions.

11.3 Indemnification Procedure

Each Party shall promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to Sections 11.1 or 11.2. The Party seeking indemnification (the “Indemnitee”) shall cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall be entitled to assume and control the defense and investigation of such Action and to employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitor shall not settle any Action in a manner that admits fault or liability on the part of the Indemnitee, imposes any non-monetary obligation or any monetary obligation not fully discharged by the Indemnitor on the Indemnitee, or does not include an unconditional release of the Indemnitee, in each case without the Indemnitee’s prior written consent, which shall not be unreasonably withheld, conditioned, or delayed. If the Indemnitor fails to assume the defense of such Action within a reasonable time after receiving notice, or fails to diligently conduct such defense, the Indemnitee may, on written notice to the Indemnitor, assume control of the defense of such Action at the Indemnitor’s cost and expense, without relieving the Indemnitor of its indemnification obligations under this Section 11. The Indemnitee’s failure to perform any obligations under this Section 11.3 will not relieve the Indemnitor of its obligations under this Section 11 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

11.4 Mitigation

If the Services or Deliverables, or any part of thereof, are, or in Provider’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer’s use of any of the Services or Deliverables is enjoined or threatened to be enjoined, Provider may, at its option and sole cost and expense:

  1. obtain the right for Customer to continue to use such Services and/or Deliverables, as applicable, materially as contemplated by this Agreement;
  2. modify or replace such Services and/or Deliverables, as applicable, in whole or in part, to seek to make these non-infringing, while providing materially equivalent features and functionality, and such Services and Deliverables as so modified or replaced will constitute Services and Deliverables under this Agreement; or
  3. by written notice to Customer, terminate this Agreement with respect to all or part of the Services and/or Deliverables, as applicable, and require Customer to immediately cease any use of the Services and/or Deliverables or any specified part or feature thereof, provided that, subject to Customer’s compliance with its post-termination obligations set forth in Section 9.4, Customer will be entitled to a refund of the pro-rata portion of any Fees prepaid by Customer for the affected Services and/or Deliverables that are attributable to the period after the effective date of such termination.

12. Limitations of Liability

THIS SECTION SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND DELIVERABLES) INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT.

12.1 Exclusion of Damages

EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN SECTION 12.3, THE EXCLUSIONS OF DAMAGES SET FORTH IN SECTION 14(a) OF THE MANAGEDDEX EULA ARE INCORPORATED INTO THIS AGREEMENT BY THIS REFERENCE AND APPLY TO PROVIDER AND ITS LICENSORS, PROVIDER PERSONNEL, SUBCONTRACTORS, AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER.

12.2 Cap on Monetary Liability

EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN SECTION 12.3, THE CAP ON MONETARY LIABILITY SET FORTH IN SECTION 14(b) OF THE MANAGEDDEX EULA-THE GREATER OF (A) THE TOTAL AMOUNTS PAID OR PAYABLE TO PROVIDER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM AND (B) US$100,000 (THE “GENERAL CAP”)-IS INCORPORATED INTO THIS AGREEMENT BY THIS REFERENCE AND APPLIES TO THE COLLECTIVE AGGREGATE LIABILITY OF PROVIDER AND ITS LICENSORS, PROVIDER PERSONNEL, SUBCONTRACTORS, AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT. WHERE BOTH THE MANAGEDDEX EULA AND THIS AGREEMENT ARE IN FORCE BETWEEN THE PARTIES, A SINGLE AGGREGATE CAP IN THE AMOUNT OF THE GENERAL CAP APPLIES ACROSS THE MANAGEDDEX EULA, THIS AGREEMENT, AND THE DATA PROTECTION EXHIBIT (EXHIBIT B). THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE CUSTOMER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

12.3 Exceptions

The exclusions and limitations in Section 12.1 and Section 12.2 do not apply to: (a) Customer’s obligations under Section 11.2 (Customer Indemnification); (b) Provider’s obligations under Section 11.1 (Provider Indemnification); or (c) either Party’s liability for gross negligence or willful misconduct; provided that, consistent with the Super-Cap in Section 14(c) of the ManagedDEX EULA, Provider’s aggregate liability under clauses (b) and (c) shall not exceed three (3) times the General Cap, and the exclusion of the categories of damages set forth in Section 12.1 shall continue to apply to clause (c) with respect to Provider. Where both the ManagedDEX EULA and this Agreement are in force between the Parties, a single aggregate cap applies across both instruments and the Data Protection Exhibit (Exhibit B), and the exceptions in this Section 12.3 shall be construed consistently with the corresponding limitations of liability in the ManagedDEX EULA.

13. Export Regulation

The export-control obligations of the Parties with respect to Talon, Provider Technology, and Deliverables are governed by Section 15 (Export Regulation) of the ManagedDEX EULA, which is incorporated into this Agreement by this reference.

14. Force Majeure

14.1 No Breach or Default

Force majeure is governed by the force majeure provisions of Section 17(b) of the ManagedDEX EULA, which are incorporated into this Agreement by this reference; provided that, for purposes of this Agreement, a “Force Majeure Event” also includes outages, unavailability, degradation, security events, API changes, vendor restrictions, or data-feed failures affecting Aternity, Microsoft, cloud, endpoint, identity, security, observability, ticketing, or other Third-Party Platforms not controlled by Provider, and does not excuse either Party’s obligations under Section 6 (Confidentiality), Section 6.4 (Data Processing; Security), the Data Protection Exhibit (Exhibit B), or any payment obligations.

14.2 Affected Party Obligations

In the event of any failure or delay caused by a Force Majeure Event, the affected Party shall give prompt written notice to the other Party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.

15. Miscellaneous

15.1 Further Assurances

On a Party’s reasonable request, the other Party shall, at the requesting Party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.

15.2 Relationship of the Parties

The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.

15.3 Government Customers

If Customer is a U.S. federal, state, local, tribal, or other government entity, or if the Services are provided under a government prime contract or subcontract, the Parties will comply with the government-specific terms, flow-downs, security requirements, data rights provisions, records requirements, accessibility requirements, and procurement clauses expressly identified in the applicable Order Form, SOW, or government addendum accepted by Provider. Talon, Provider Technology, Documentation, and Deliverables are “commercial products,” “commercial services,” “commercial computer software,” and/or “commercial computer software documentation” developed exclusively at private expense, and are provided to government users only with the rights expressly granted in this Agreement, the ManagedDEX EULA, and the applicable ordering document; provided that U.S. Government customers are subject to applicable federal law and any mandatory dispute forum required by statute or regulation.

15.4 Public Announcements

Neither Party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other Party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other Party, which shall not be unreasonably delayed or withheld; provided, however, that Provider may, without Customer’s consent, include Customer’s name in its lists of Provider’s current and former customers in promotional and marketing materials.

15.5 Notices

All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement shall be given in accordance with the notice provisions of Section 17(c) of the ManagedDEX EULA, which is incorporated into this Agreement by this reference, using the notice details set forth in the applicable Order Form (Exhibit A).

15.6 Interpretation

The rules of interpretation set forth in Section 17(i) of the ManagedDEX EULA are incorporated into this Agreement by this reference.

15.7 Headings

The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

15.8 Entire Agreement; Order of Precedence

This Agreement, together with the ManagedDEX EULA, applicable Order Forms, SOWs, exhibits, schedules, attachments, appendices, and any other documents incorporated herein by reference, constitute the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. The Parties intend this Agreement to operate as the support and services companion to the ManagedDEX EULA. The ManagedDEX EULA governs the license to, access to, and use of Talon, Documentation, Updates, Authorized User terms, license restrictions, Talon-related audit rights, and Talon termination consequences. This Agreement governs the support, ManagedDEX, professional services, service levels, and Deliverables ordered under it. In the event of any inconsistency between the body of this Agreement, the related exhibits, schedules, attachments, appendices, the ManagedDEX EULA, Order Forms, SOWs, and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, the applicable Order Form or SOW solely with respect to the Services ordered thereunder and only to the extent it expressly states that it is modifying this Agreement or the ManagedDEX EULA; (b) second, the ManagedDEX EULA solely with respect to Talon licensing, Talon access and use, Documentation, Updates, Authorized User terms, Talon license restrictions, Talon-related audit rights, and Talon termination consequences; (c) third, this Agreement solely with respect to the Services, ManagedDEX, service levels, and Deliverables; and (d) fourth, the exhibits, schedules, attachments, and appendices to this Agreement. Exhibit B ranks immediately below the applicable Order Form and above the body of this Agreement, in respect of the subject matter of Exhibit B only.

15.9 Assignment

Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Provider’s prior written consent, which consent Provider may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Provider’s prior written consent is required. Notwithstanding anything to the contrary in this Agreement, and consistent with the ManagedDEX EULA, Provider may freely assign or otherwise transfer any or all of its rights and delegate or otherwise transfer any or all of its obligations or performance under this Agreement, in whole or in part, whether voluntarily, involuntarily, by operation of law, or otherwise, without Customer’s consent and without notice, including in connection with any merger, consolidation, reorganization, sale of equity or assets, change of control, or the contemplated separation or drop-down of the Talon business into a separate entity. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 15.9 is void. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.

15.10 No Third-Party Beneficiaries

This Agreement is for the sole benefit of the Parties and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

15.11 Amendment and Modification; Waiver

Provider may update, modify, or replace this Agreement from time to time by posting revised terms or otherwise making them available through a clickwrap, online, or other electronic mechanism, or by providing notice to Customer. Provider will use commercially reasonable efforts to notify Customer of any revised terms at least thirty (30) days before they take effect by email to Customer’s Technical Contact or another notice mechanism described in Section 15.5, and any revised terms that materially and adversely affect Customer’s rights or obligations will not take effect until such notice has been provided. Subject to the following sentence, any such revised terms will become effective upon the earlier of Customer’s acceptance through any mechanism described in the preamble or the commencement of the next Renewal Term. If any revised terms materially and adversely affect Customer’s rights or obligations, Customer may reject them by providing Provider with written notice within thirty (30) days after Provider’s notice of the revised terms, in which case the then-current terms (without the rejected changes) will continue to govern until the end of the then-current Term, and the revised terms will apply upon commencement of the next Renewal Term unless Customer elects not to renew in accordance with Section 9.2. Notwithstanding the foregoing, Customer’s right to reject revised terms under this Section 15.11 does not apply to, and will not block, delay, or otherwise affect, any increase in Fees made by Provider in accordance with Section 7.2, which increase will take effect for the applicable Renewal Term regardless of any objection by Customer, and Customer’s sole remedy with respect to any such Fee increase is to elect not to renew in accordance with Section 9.2. Further notwithstanding the foregoing, no amendment to or modification of the commercial or negotiated terms set forth in an applicable Order Form or SOW is effective unless it is in writing and signed or accepted by each Party through the mechanism applicable to that Order Form or SOW. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

15.12 Severability

The severability provision in Section 17(h) of the ManagedDEX EULA is incorporated into this Agreement by this reference.

15.13 Governing Law; Submission to Jurisdiction; Waiver of Jury Trial

The governing law, exclusive forum, submission to jurisdiction, and waiver of jury trial set forth in Section 17(a) of the ManagedDEX EULA are incorporated into this Agreement by this reference and apply to any legal suit, action, or proceeding arising out of or related to this Agreement or the Services, Deliverables, or other subject matter hereof, or any transactions contemplated hereby.

15.14 Equitable Remedies

Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 (Confidentiality) or, in the case of Customer, Section 5 (Customer Obligations) or Section 8 (Intellectual Property Rights), of this Agreement would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including in a restraining order, an injunction, specific performance, and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

15.15 Counterparts

This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.


BY ACCEPTING THIS AGREEMENT THROUGH ANY MECHANISM DESCRIBED IN THE PREAMBLE, INCLUDING CLICKWRAP OR ONLINE ACCEPTANCE, SUBMISSION OR EXECUTION OF AN ORDER FORM THAT REFERENCES OR INCORPORATES THIS AGREEMENT, OR RECEIPT OR USE OF THE SERVICES, CUSTOMER AGREES TO BE BOUND BY THIS AGREEMENT AS OF THE EFFECTIVE DATE. THE INDIVIDUAL ACCEPTING THIS AGREEMENT REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND CUSTOMER.

Provided by RavenTek Solution Partners, LLC. In the event of a conflict between this page and a customer’s signed agreement, the signed agreement governs.

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