Certent, Inc.

Disclosure Management Terms of Use

The following terms of use (the “Terms of Use“) set forth the terms pursuant to which Certent, Inc. (“Certent”) will provide You (as defined below) with the right to access and use Certent’s Disclosure Management Solution. The “Disclosure Management Solution” means Certent’s online XBRL tagging and reporting system comprised of proprietary software, tools, databases and related technology owned by Certent or its licensors, and made available through an internet site hosted by or on behalf of Certent, along will any associated documentation. “You” and “User” means you as an individual or, if you represent a corporation or entity, that corporation or entity.

  1. Subscription Services.

Certent will provide User with the Subscription Services. “Subscription Services” means (i) granting to User the right to access and use the Disclosure Management Solution listed on any purchase order, subscription order or other order form (collectively, “Order”) for User’s internal business purposes only, (ii) hosting the Disclosure Management Solution, and (iii) maintaining and supporting the Disclosure Management Solution.

  1. Use of Services

Certent will (i) provide the Subscription Services, (ii) periodically update the Subscription Services and respond to reported problems, (iii) implement appropriate security measures designed to protect User’s User Data, and (iv) comply with applicable laws and government regulations. “User Data” means the information and data the User submits or uses in connection with the Subscription Services or includes in or uses for support of User’s filings with the Securities and Exchange Commission (“SEC”).

Certent will not disclose any User Data except as directed by User or as compelled by law, and then only in accordance with Section 5 below. Certent will not access the User Data, except (i) to provide the Subscription Services, or (ii) at User’s request to address a support issue, or (iii) to address or prevent service or technical problems. User shall: (i) be solely responsible for the accuracy, legality and integrity of all User Data, (ii) back up the User Data in case such data is corrupted or lost in connection with the Subscription Services, (iii) use the Disclosure Management Solution only in accordance with these Terms of Use and associated documentation, and in compliance with all laws and government regulations, including regulations of the SEC, (iv) provide Certent with up-to-date contact information for all of User’s designated contacts; and (v) comply with the Acceptable Use Policy for the hosted environment, which is available via the internet at http://certent.com/acceptable-use-policy/ User acknowledges that XBRL taxonomies are governed by the SEC, not Certent, and that use of XBRL and the calculations resulting from the Disclosure Management Solution necessarily rely on such SEC-mandated XBRL taxonomies.
The total number of employees and contractors of User that may access and use the Disclosure Management Solution during the Term shall not exceed the number of users set forth on an Order. In addition, User shall not: (i) submit, send or store any information through the Disclosure Management Solution other than User Data; (ii) submit to the Disclosure Management Solution any computer viruses, trojan horses, time bombs, cancel bots or other computer programming routines intended to detrimentally interfere with the Disclosure Management Solution (each, a “Virus”), (iii) take any action or omit to act in any way that would interfere with or disrupt the integrity or performance of the Disclosure Management Solution, or adversely affect Certent’s right, title or interest in or to the Disclosure Management Solution, (iv) attempt to gain unauthorized access to the Disclosure Management Solution or make the Subscription Services available to anyone other than User’s authorized users, (v) sell, rent, lease, sublicense, distribute, transfer, copy, reproduce, display, modify, or timeshare the Disclosure Management Solution or any portion thereof, or (vi) prepare any derivative work based on the Disclosure Management Solution or any associated documentation, or decompose, decode or otherwise reverse engineer any other Certent technology.

  1. Subscription Fee:

Access to the Disclosure Management Solution is subject to payment of a fee, either to Certent or a Certent authorized reseller. Certent may suspend or terminate User’s right to access and use the Disclosure Management Solution or other Subscription Services when any payment is overdue by providing thirty (30) days advance written notice. User is responsible for the payment of all applicable taxes and duties, including, without limitation, sales, use, excise, value-added, and franchise taxes, associated with its use of the Subscription Services.

  1. Proprietary Rights.

Certent retains all right, title and interest in and to the Disclosure Management Solution and other Subscription Services, including without limitation, all intellectual property rights in and to the software and documentation underlying the Disclosure Management Solution, and User receives no right, title or interest to the Disclosure Management Solution and other Subscription Services other than the express rights granted in these Terms of Use. User shall not remove or obliterate any copyright, trademark or proprietary rights notice of Certent or its licensors from the Disclosure Management Solution or any associated documentation.

All User Data shall remain the property of User, and Certent (and its third-party vendors) shall have the right to possess and use the User Data solely for performance of the Subscription Services. If the Subscription Services require User to download or install at a User site any Certent software (“Desktop Software”), the Desktop Software is licensed, not sold. Certent grants User a limited, non-exclusive, non-transferable right to use the Desktop Software in object code format solely for internal use in connection with the Subscription Services. Except as expressly permitted under these Terms of Use, User will not, and will not allow any third party to: (a) copy the Desktop Software or the accompanying documentation; (b) modify, translate, adapt, alter, or create derivative works from the Desktop Software; (c) merge the Desktop Software with any other software or documentation; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Desktop Software; (e) distribute, sublicense, rent, lease or loan the Desktop Software to any third party; or (f) use the Desktop Software for the business needs of another person or entity, including without limitation, providing outsourcing, service bureau, software as a service, commercial hosting, application service provider or on-line services to third parties. User may not remove, alter or obscure any proprietary notice that appears on the Desktop Software. This software license will automatically terminate upon expiration or termination of these Terms of Use at which time, User agrees to immediately uninstall and cease all use of the Desktop Software, and, upon the request of Certent, certify in writing compliance with this subsection.

If User is the U.S. Government or if User is a contractor or subcontractor (at any tier) of the U.S. Government and is licensing the Disclosure Management Solution for use by the U.S. Government or in connection with any contract or other transaction with the U.S. Government, User acknowledges that the Software qualifies as commercial computer software and that the associated documentation qualifies as commercial computer software documentation within the meaning of the applicable acquisition regulations. The terms and conditions of these Terms of Use are fully applicable to the Government’s use and disclosure of the Disclosure Management Solution and associated documentation, and shall supersede any conflicting terms or conditions.

In the event that User provides Certent with any comments, suggestions or other feedback with respect to the Disclosure Management Solution, Certent has the right, but not the obligation, to use such feedback in any way without restriction or obligation to User. Certent shall be the exclusive owner of, and shall be free to use for any purpose, any ideas, concepts, know-how, or techniques resulting from the feedback, including, without limitation, any modifications or enhancements to the Disclosure Management Solution or other Subscription Services.

  1. Confidentiality and Data Security Obligations.

Each party agrees that, during and following the Term, such party shall (i) take reasonable steps, at least substantially equivalent to the steps it takes to protect its own confidential information, to protect the other party’s Confidential Information from unauthorized access, copying, or use; (ii) not disclose, except under a binding confidential disclosure agreement as restrictive as the confidentiality terms hereunder, or use the other party’s Confidential Information, and then only in performance of its obligations under these Terms of Use; and (iii) return or, at the request and instruction of the disclosing party, destroy, and certify that it has destroyed, all material embodying the other party’s Confidential Information. These obligations shall not apply with respect to any portion of a disclosing party’s Confidential Information that: (a) was in the public domain at the time it was disclosed to or observed by the receiving party; (b) entered the public domain through no fault of the receiving party; (c) is rightfully received by the receiving party from a third party without a duty of confidentiality; (d) is independently developed by the receiving party without reference to or incorporation of the other party’s Confidential Information; or (e) is disclosed under operation of law. “Confidential Information” means information relating to or disclosed in connection with these Terms of Use, which is, or should be reasonably understood to be, confidential or proprietary to a party, including, but not limited to, the terms of these Terms of Use and the disclosing party’s pricing or other financial information. In addition, User’s Confidential Information shall include the User Data, and Certent’s Confidential Information shall include the Disclosure Management Solution, all associated documentation, screen shots and development plans, and all security information provided to User by or on behalf of Certent or its vendors (such as passwords, audits, SSAE No. 16 SOC reports or related information).

  1. Warranties.

User represents, warrants and covenants that (i) it has the right and authority to enter into these Terms of Use and to use and disclose the User Data and other information or materials provided by or on behalf of User hereunder; (ii) it will obey all applicable laws, rules and regulations in the use of the Disclosure Management Solution and other Subscription Services; and (iii) the User Data will contain no Viruses.

Certent represents, warrants and covenants that (i) it has the right and authority to enter into these Terms of Use; (ii) the Disclosure Management Solution and other Subscription Services will operate in substantial accordance with the specifications set forth in the documentation associated with the Subscription Services; (iii) any open source software incorporated into the Disclosure Management Solution is done in compliance with the applicable license terms and User’s use of the Subscription Services will not require disclosure, licensing or redistribution of User’s proprietary software; and (iv) to the best of Certent’s knowledge, the Disclosure Management Solution contains no Viruses. Certent’s sole obligation and User’s sole and exclusive remedy for any breach of subsection (ii) of this paragraph is for Certent to repair the Disclosure Management Solution or other applicable Subscription Service. Certent does not warrant that: (a) the Disclosure Management Solution or other Subscription Services will be uninterrupted or error-free, or (b) the Disclosure Management Solution or other Subscription Services will operate in combination with other hardware or software, other than hardware and third-party software approved or recommended by Certent in writing.

EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PARTIES MAKE NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, AND ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND MERCHANTABILITY.

  1. Mutual Indemnification.

Certent shall indemnify, defend and hold harmless User and its officers, directors, employees and representatives from and against any and all claims made or threatened by any third party and all related losses, expenses, damages, costs and liabilities, including reasonable attorneys’ fees and expenses incurred in investigation or defense (collectively, “Damages”), to the extent such Damages arise out of or relate to a claim that the Disclosure Management Solution infringes, misappropriates, or otherwise violates any third party’s U.S. intellectual property rights. Certent shall have no obligation for any claim under this Section 7 to the extent such claim is based on: (i) any use of the Disclosure Management Solution outside the scope of these Terms of Use or any other material breach of these Terms of Use by User, (ii) any unauthorized modification of the Disclosure Management Solution by User, (iii) any combination of the Disclosure Management Solution, to the extent the claim arises from such combination, or (iv) any use of the Disclosure Management Solution after Certent’s notice to User that it cease such use as a result of such claim. If User’s use of the Disclosure Management Solution in accordance with these Terms of Use is, in Certent’s sole opinion, likely to constitute an infringement of a third party’s intellectual property rights, then Certent may promptly and at its own expense, (a) procure for User the right to continue accessing and using the Disclosure Management Solution; or (b) modify or replace the Disclosure Management Solution (without materially detracting from its overall performance) so as to avoid the infringement. If neither of the foregoing alternatives is, in Certent’s sole opinion, commercially reasonable, Certent may immediately terminate the subscription granted hereunder and Certent’s obligations with respect to the Disclosure Management Solution and other Subscription Services hereunder, and refund to User any prepaid but unused fees paid by User. TO THE FULLEST EXTENT PERMITTED BY LAW, THE FOREGOING STATES CERTENT’S ENTIRE LIABILITY TO USER IN RESPECT TO ANY CLAIM UNDER THIS SECTION 7, AND ALL OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES OR CONDITIONS REGARDING INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.

User shall indemnify, defend and hold harmless Certent and its officers, directors, employees and representatives from and against any and all claims made or threatened by any third party and all related Damages, to the extent such Damages arise out of or relate to (i) the User Data, or (ii) any unlawful financial trading or violations of applicable securities laws, except to the extent caused by the improper acts or omissions of Certent.

A party seeking indemnity (the “Indemnified Party”) shall give the other party (the “Indemnifying Party”) prompt notice of any such claim made against it for which it is entitled to indemnity hereunder, and shall cooperate with Indemnifying Party in the defense of any such claim, suit or proceeding, including appeals, negotiations and any settlement or compromise thereof, provided that the Indemnifying Party shall control the defense, negotiations and settlement or comprise thereof, except the Indemnifying Party shall not enter into any settlement or compromise which admits the fault of, or necessitates payment by, the Indemnified Party without the consent of the Indemnified Party.

  1. Limitation of Liability.

EXCEPT FOR WILLFUL MISCONDUCT AND ANY INDEMNITY OBLIGATIONS UNDER SECTION 7, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES IN CONNECTION WITH THESE TERMS OF USE, REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL CERTENT BE LIABLE TO USER FOR ANY LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS, OR LOSS OF DATA, ARISING OUT OF USER’S USE OF, OR INABILITY TO USE, THE DISCLOSURE MANAGEMENT SOLUTION OR OTHER SUBSCRIPTION SERVICE. EXCEPT FOR WILLFUL MISCONDUCT AND ANY INDEMNITY OBLIGATIONS UNDER SECTION 7, EACH PARTY’S TOTAL LIABILITY UNDER THESE TERMS OF USE SHALL BE LIMITED TO THE AMOUNT OF THE FEES PAID OR PAYABLE BY USER FOR A TWELVE MONTH PERIOD UNDER THE APPLICABLE ORDER TO WHICH THE CLAIM RELATES.

  1. Term and Termination.

Certent will provide the Subscription Services commencing on the date You first accessed the Disclosure Management Solution and continue for so long as User pays the applicable fees unless terminated earlier in accordance with this Section (“Term”).

Either party may terminate these Terms of Use as follows: (i) if the other party breaches a material obligation under these Terms of Use, and fails to cure such breach within thirty (30) days from the date it receives from the non-breaching party a written notice of the breach and a demand for cure, or (ii) immediately by written notice if the other party files a petition in bankruptcy, makes a general assignment for the benefit of its creditors, has a receiver appointed or applied for it, or winds up or liquidates.

User’s right to access and use the Disclosure Management Solution and to receive the other Subscription Services will terminate upon expiration of the Term or earlier termination of these Terms of Use as set forth herein, unless renewed. No refund of any prepaid fees by User shall be given by Certent upon termination except for a prorated refund of unused fees in the case of termination by User for Certent’s material breach or as provided in Section 7. Upon termination, each party will, at the request of the other party, return (in the same format as provided by the disclosing party) or destroy the Confidential Information of the other. Sections 3, 4, 5, 6 (last paragraph only), 7, 8, 9 and 10 shall survive termination.

  1. General Terms.

If You have previously executed a written agreement with Certent regarding the Subscription Services which remains valid and enforceable, the terms of that previously executed written agreement shall govern your use of the Disclosure Management Solution. If You do not have a previously executed written agreement with Certent regarding the Subscription Services, or such agreement is no longer valid and enforceable than these Terms of Use, along with the terms incorporated by reference herein, constitutes the entire, complete and exclusive agreement between Certent and User regarding the Subscription Services and supersedes all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of these Terms of Use. Notwithstanding any language to the contrary therein, no terms and conditions in User’s preprinted purchase order or order documentation shall be incorporated into these Terms of Use. No failure or delay by either party in exercising any right under these Terms of Use shall constitute a waiver of that right.

If any provision of these Terms of Use is found to be invalid or unenforceable, such provision shall be interpreted as to give maximum effect to its intended purpose and this shall not affect the validity or enforceability of any other provision of these Terms of Use.

Any notice, request, or other communication that is required or permitted under these Terms of Use shall be in writing and in English, and shall be deemed to have been given when delivered personally, or sent via an overnight express mail service, or sent via facsimile with a confirmation sent next day by an overnight express mail service, to the address set forth on the Order (if to User) or to the address set forth below (if to Certent), and shall be effective on the day of receipt of the notice if received during normal business hours of the addressee, and if not received during such normal business hours, then on the first business day of the addressee after such receipt. Certent’s contact information for purposes of this paragraph is: Certent, Inc., 4683 Chabot Dr. Suite 260, Pleasanton, CA 94588, Attention: Chief Financial Officer.

Neither party will be liable for, or be considered to be in breach of or default under these Terms of Use on account of, any delay or failure to perform as required by these Terms of Use as a result of circumstances beyond the reasonable control of such party, including without limitation acts of God, acts of any governmental authority, Internet or electronic communications failures or delays, war or national emergency, riots, civil commotion, fire, explosion, flood, and epidemic.

Neither party may assign these Terms of Use, or any rights or obligations hereunder, without the consent of the other party. Notwithstanding the foregoing, assignment as part of a merger, acquisition or other change of control shall not require the consent of the other party, except that User may not assign these Terms of Use to a competitor of Certent without Certent’s prior written consent. Any assignment or delegation not permitted under this Section 10 shall be null and void. For a permitted assignment, these Terms of Use will bind and inure to the benefit of the parties, their respective successors and permitted assigns.