Cloud Computing Service Exhibit

The following terms are supplemental to the master service agreement previously executed between the Parties (“MSA”). All terms not defined herein are defined as set forth in the MSA.
 
These terms are applicable to Customer’s cloud computing services, including, but not limited to, Virtual Data Center, vServer, Evolved Office: Desktop, Disaster Recovery as a Service, and Reflection:

a) Software Licensing and Compliance. If Customer provides its own licenses under XTIUM’s “Bring Your Own License” (“BYOL”) hosting offering, Customer agrees to determine, acquire, and maintain compliance for the correct number of software licenses in their virtual environment hosted by XTIUM, regardless of whether the software or administration is self-managed or managed by XTIUM, and shall maintain the required licenses and compliance during the entire Term of the applicable XTIUM Offerings. For Microsoft products specifically, Customer must maintain new product version rights (“Software Assurance”) on the Microsoft software products it licenses for its XTIUM hosted environment and must complete and return any required License Mobility verification forms requested by XTIUM within ten (10) days of receiving the forms. Customer also agrees to the following terms concerning any software products used (“Software”): i) Customer is prohibited from removing, modifying or obscuring any copyright, trademark or other proprietary rights notices that are contained in or on the Software; ii) Customer is prohibited from reverse engineering, decompiling, or disassembling the Software, except to the extent that such activity is expressly permitted by applicable law; iii) Customer understands and agrees that for Microsoft software, Microsoft disclaims, to the extent permitted by applicable law, all warranties and any liability by Microsoft or its suppliers for any damages, whether direct, indirect, or consequential, arising from use of the Software; iv) 3rd party software suppliers do not provide technical support for the Software. Customer is responsible for arranging for Software technical support; v) Customer shall not undertake any action that will interfere with or diminish any owner’s right, title, and/or interest in the trademark(s) or trade name(s) concerning the Software; vi) Customer shall not utilize the XTIUM Offerings or the Software to engage in the manufacture, use distribution or transfer of counterfeit, pirated, or illegal software; vii) Customer shall cooperate with any audit or verification performed by XTIUM or assigned 3rd party licensing agent and permit the disclosure of Customer’s information as reasonably required under any such verification; viii) the Software will not be utilized for “high risk use,” and may not be used in any application or situation where failure of the Software could lead to death or serious bodily injury of any person or to severe physical or environmental damage; ix) 3rd party Software providers will be an intended third party beneficiary with respect to provisions concerning the Software Licensing and Compliance and Right to Audit and Verification terms as described in Sections 1 and 2 of this Service Exhibit, and shall have the right to enforce applicable provisions, including but not limited to verification of Customer’s license compliance; and x) to abide by the terms of all end user license terms for the software products used.

b) Unlimited Backup Service. Customer’s use of UNLMDRVEEAM365 - Veeam Office 365 Unlimited Backup (the “Unlimited Backup Service”) at the MRC stated in the Sales Order(s) presumes industry standard utilization of the Unlimited Backup Service by commercial customers or based on comparison of such use to other XTIUM customers as determined by Microsoft and/or Veeam. If Customer makes excessive use of the Unlimited Backup Service, XTIUM shall be entitled in its sole discretion to assess additional charges with respect to such excess utilization and/or suspend the XTIUM Offering. Notwithstanding any other provision of the Agreement to the contrary, XTIUM shall be entitled to pass through any increase to charges for third party licensing services imposed on XTIUM, including, but not limited to, Microsoft SPLA and Microsoft O365, at any time during the Term.

c) Right to Audit and Verification. Customer shall allow XTIUM (or an appointed 3rd party designee) to routinely audit and verify compliance with the Agreement and shall provide XTIUM with the required domain access to perform any such audit or verification. Failure to provide XTIUM with the necessary domain access required to perform audit or verification constitutes a material breach and XTIUM may terminate XTIUM Offerings or access to the Software. XTIUM reserves the right to charge any additional monthly reporting costs incurred by XTIUM to remedy non-compliance to any Customer that has Software installed for which it cannot provide sufficient evidence of required software licensing.

d) Data Security. XTIUM shall at all times use not less than industry standard to (i) to protect the physical security of the infrastructure used by XTIUM to provide the Cloud Services and (ii) maintain technical, administrative and organizational measures, internal controls and data security routines and procedures with respect to its software, information systems and networks intended to protect Customer information and data against accidental loss or change, unauthorized disclosure or access or unintended destruction. Customer shall be solely responsible for the security of their respective information systems/networks and neither XTIUM, nor any XTIUM 3rd party shall have any liability related to Customer systems/networks. XTIUM shall use industry standard best practices to segregate Customer’s Cloud Services from that of other XTIUM customers in any multi-tenant environment.

Except as expressly agreed in writing between Customer and XTIUM: (a) Customer shall own all Customer data entered into, processed or generated by the Cloud Services in connection with Customer’s use; and (b) such data shall constitute the Confidential Information of Customer to the extent it comes into XTIUM’s possession.

e) Intellectual Property and Ownership.  All computer applications, software, drawings, diagrams, specifications, engineering, other information and materials, and all intellectual property now owned by XTIUM or to which XTIUM has rights, or which may be licensed or sublicensed by XTIUM to Customer or which may be developed by (or on behalf of) XTIUM for the specific operation of the Cloud Services sold to Customer, whether or not developed at the specific request of Customer, shall remain the sole and exclusive property of XTIUM, and Customer shall not acquire any rights or licenses, express or implied, unless otherwise expressly set forth in a written agreement between XTIUM and Customer.

All computer applications, programs, software, drawings, diagrams, specifications, engineering, and other information and materials, and all intellectual property now owned by Customer or to which Customer has rights, or which may be licensed or sublicensed by Customer or which may be developed by (or on behalf of) Customer in connection with the use of the Cloud Services or otherwise as a result of or related to XTIUM providing the Cloud Services to Customer, whether or not developed at the specific request of any such party, shall remain the sole and exclusive property of Customer, and XTIUM acquires no rights or licenses, express or implied, in same by virtue unless otherwise expressly set forth in a written agreement between Customer and XTIUM; provided, however, the underlying intellectual property with respect to the Cloud Services shall be deemed the intellectual property of XTIUM.

Any Customer data, documents and information obtained by XTIUM or uploaded to the Cloud Services shall remain the property of the Customer. Upon a) the termination of the Cloud Services for any reason other than an uncured breach by Customer and b) XTIUM’s receipt of Customer’s written request, XTIUM shall immediately provide to Customer all of Customer’s data in XTIUM’s control or possession and residing within the Cloud Services. Any remaining Customer data shall be destroyed by XTIUM either (i) five (5) days after the termination of the Cloud Services, or (ii) immediately upon Customer providing a written or electronic request to XTIUM.

Third-Party Software Licensing: Customer’s usage of any third-party software installed in the XTIUM cloud is expressly conditioned at all times on Customer accepting and adhering to the terms of any and all third-party license agreements applicable to such usage, regardless of whether that software has been acquired from XTIUM. Without waiving or limiting XTIUM’s rights under its agreements with Customer, in the event that XTIUM determines, in its sole discretion and with or without the input of any third-party software publisher or its representative, that Customer is not complying with any such third-party license terms, XTIUM (1) immediately may suspend or terminate Customer’s usage of such third-party software, (2) may invoice Customer for any and all charges for licensing or associated services or taxes arising from such prior non-compliance, regardless of whether XTIUM has received any demand for such charges from the publisher of such software (or from such publisher’s representative), and/or (3) may begin invoicing Customer monthly for prospective charges for licensing or associated services or taxes arising from any such usage that XTIUM allows to remain in its cloud environment, again, regardless of whether XTIUM has received any demand for such charges from the publisher of such software (or from such publisher’s representative). The parties expressly agree that XTIUM’s right to invoice for past charges as set forth in the immediately preceding sentence is not subject to provisions (if any) set forth elsewhere in the parties’ agreements that otherwise would operate to limit XTIUM’s right to invoice for historical charges. Customer shall pay any and all charges so invoiced as provided in the MSA. Microsoft Licensing: NOT all customer-owned Microsoft software can legally be hosted in a public cloud environment like XTIUM’s cloud. Customer is advised that, as with all other third-party software products, Customer is solely responsible for ensuring its own compliance with Microsoft’s licensing rules. Where applicable and required by those rules, Customer shall complete and return to XTIUM a License Mobility Verification Form (or any substitute therefore subsequently introduced by Microsoft) in order to use Customer’s licenses in XTIUM’s cloud.