Qumu Cloud Services Agreement

This Agreement (“Agreement”) is made as of the Effective Date by and between QUMU, INC., a corporation with offices located at 1100 Grundy Lane, Suite 110, San Bruno, California, 94066 USA (“QUMU”) and the individual or entity identified as “CUSTOMER” Within the signature block

THIS LEGAL AGREEMENT STATES THE TERMS AND CONDITIONS UNDER WHICH CUSTOMER MAY USE THE QUMU CLOUD SERVICES. BY CLICKING ON THE ACCEPT BUTTON, OR USING OR HAVING THE SOLUTION USED ON CUSTOMER’S BEHALF, CUSTOMER INDICATES THAT CUSTOMER HAS READ AND UNDERSTANDS, AND AGREES TO BE BOUND BY, THE TERMS SET FORTH IN THIS AGREEMENT. IF THE SOLUTION IS USED ON BEHALF OF CUSTOMER, THE TERMS SET FORTH IN THIS AGREEMENT SHALL APPLY TO CUSTOMER AS WELL AS TO ANY INDIVIDUAL OR ENTITY USING THE SOLUTION ON BEHALF OF CUSTOMER.

The Products are sold or licensed pursuant to a Sales Terms & Conditions and End User License Agreement (“EULA”) which may be found at www.Qumu.com/legal, the terms of which are incorporated herein. If the terms of this Agreement and the terms of the EULA conflict, the terms of this Agreement supersede the terms of the EULA. Terms which are not included in Article I but capitalized herein shall have the meaning set forth in the EULA.

W I T N E S S E T H:

WHEREAS, QUMU owns certain Solutions;

WHEREAS, CUSTOMER has independently approved and determined that the Solutions will meet the needs of CUSTOMER; and

WHEREAS, CUSTOMER desires to use the Solutions listed in an Order Form.

NOW THEREFORE, in consideration of the mutual benefits of the covenants and restrictions herein contained, QUMU and CUSTOMER hereby agree as follows:

ARTICLE I: DEFINITIONS

The following definitions apply to this Agreement and all schedules, exhibits and attachments to this Agreement:

1.01 — “Access” and variants thereof mean to store data in, retrieve data from or otherwise approach or make use (directly or indirectly) through electronic means or otherwise of the QUMU Solutions.

1.02 – “Cancellation Notice” means a written notice sent by non-breaching party to breaching party that cancels this Agreement.

1.03 — “CUSTOMER” means the customer entity that has signed this Agreement and each Order Form.

1.04 – “Delivery Date” means the date the Solution is available to CUSTOMER as a service accessible via a secure password protected website and Qumu has provided written notification by e-mail or otherwise with instructions to access the service. Any delivery dates included in QUMU quotes are estimates. QUMU does not guarantee delivery on a specific date.

1.05 – “Documentation” means the Solution guides made available to CUSTOMER.

1.06 – “Effective Date” means the date the last party executes this Agreement.

1.07 – “Order Form” means an order form attached to or referencing this Agreement.

1.08 — “Solution” means one or more of QUMU’s proprietary products listed in an Order Form.

1.09 — “Services” means services as requested by CUSTOMER and detailed in an Order Form, Statement of Work or another document between QUMU and CUSTOMER.

1.10 — “Term” means a period of time commencing on the Effective Date and continuing until this Agreement is terminated or canceled under Article IV.

1.11 — “Unauthorized Access” means any access to the Solution except for the exclusive purpose of this Agreement and training employees of CUSTOMER in the use of the Solution.

1.12 — “Unauthorized User” means any individual who accesses the Solution except for: (1) employees of CUSTOMER authorized by CUSTOMER to access the Solution and (2) persons authorized by QUMU to access the Solution.
ARTICLE II: Use of Solution

2.01 — Grant of Use Rights: QUMU hereby grants to CUSTOMER a non-exclusive and non-transferable right to use the Solution for the Term, subject to the terms of this Agreement.

2.02 – Use Restrictions: CUSTOMER shall prevent Unauthorized Users from accessing the Solution through CUSTOMER’s access credentials. CUSTOMER shall promptly inform QUMU of any and all Unauthorized Access (or suspected Unauthorized Access) and Unauthorized Users (or suspected Unauthorized Users) of which CUSTOMER has knowledge or suspicion. Access to the Solution using third party products for purposes of manipulating, viewing, disclosing or using the internal structure of the Solution or for creating a database, data dictionary or data model shall be deemed Unauthorized Access.

2.03 – Laws and Regulations: CUSTOMER shall comply with all applicable laws and regulations of the United States, the country in which CUSTOMER is located or the Solution is used, and any other country having jurisdiction.

2.04 — End Use: CUSTOMER hereby represents and warrants that the Solution is being used by CUSTOMER for its own use and not for resale, outsourcing, or offering service bureau services.

2.05 – Maintenance: QUMU will notify CUSTOMER of any maintenance which may cause the Solution to be unavailable. Where practicable, notification will be provided at least three (3) days prior to such maintenance. In cases of emergency, QUMU will use its best efforts to notify CUSTOMER of a downtime.

ARTICLE III: PAYMENT

3.01 – Price and Invoicing: CUSTOMER shall pay the amounts listed on the applicable Order Form pursuant to the terms of the applicable invoice.

3.02 — Taxes: CUSTOMER shall pay any and all taxes attributable to this Agreement, to the transactions contemplated hereunder or to the transactions performed by CUSTOMER or third parties using the Solutions, including, without limitation, any applicable sales or use taxes. Notwithstanding the foregoing, CUSTOMER shall not be responsible for paying any income taxes assessed against QUMU.

3.04 — Late Fee: Any amount which is not paid when due may, at QUMU’s option, be increased by a late charge equal to 1% of such unpaid amount for each month (or portion thereof) in which such amount is due and not paid, not to exceed the maximum rate allowed by applicable laws or regulations.

ARTICLE IV: TERMINATION

4.01 — Termination Limitations: This Agreement shall only be terminated or canceled as provided under this Article IV.

4.02 — Termination: CUSTOMER’s subscription is for the time period stated on the Order Form and may not be cancelled until the end of such agreed period unless otherwise stated on such form. This Agreement shall terminate as follows:

  1. if CUSTOMER fails to make any payment due within thirty (30) days after receiving written notice from QUMU that such payment is delinquent, QUMU may terminate this Agreement on written notice to CUSTOMER at any time following the end of such thirty (30) day period, in which case CUSTOMER agrees to pay QUMU liquidated damages in the amount of fees associated with the number of months remaining in the annual Term as set forth on the Order Form; or
  2. if either party becomes insolvent (i.e., becomes unable to pay its debts in the ordinary course of business as they come due) or makes an assignment of this Agreement for the benefit of creditors, the other party may terminate this Agreement immediately upon written notice.

4.03 — Cancellation for Cause: If either party violates its obligations under this Agreement, the non-violating party may cancel this Agreement by sending a Cancellation Notice describing the noncompliance to violating party. Upon receiving such Cancellation Notice, violating party shall have thirty (30) days from the date of such notice to cure such noncompliance. If such noncompliance is not cured within the required thirty (30) day period, the non-violating party shall have the right to cancel this Agreement as of the thirty-first day after the date of the Cancellation Notice. If QUMU cancels this Agreement for cause, CUSTOMER agrees to pay QUMU liquidated damages in the amount of fees associated with the number of months remaining in the annual Term as set forth on the Order Form.

4.04 – Deletion of Customer Content: Upon termination or cancellation of this Agreement access to the Services is terminated, and CUSTOMER shall promptly remove (at CUSTOMER’s expense) all CUSTOMER information and data (”Content”) stored by CUSTOMER pursuant to CUSTOMER’s Order Form. QUMU reserves the right to erase CUSTOMER’s content after the passage of fifteen (15) days from the date this Agreement is terminated or cancelled.

ARTICLE V: DAMAGES

5.01 – Limitation of Damages: Each of QUMU and CUSTOMER shall not be liable to the other in connection with or relating to this Agreement, the Solution, or any transactions involving the Solution for any direct, indirect, lost profits, consequential, exemplary, incidental or punitive damages, regardless of the form of action, whether in contract or in tort, including breach of warranty and negligence, regardless of whether the other party has been advised of the possibility of such damages in advance or whether such damages are reasonably foreseeable. Notwithstanding anything herein to the contrary and except for third party claims, the liability of QUMU and CUSTOMER for any reason and for any cause of action whatsoever in connection with or relating to this Agreement, the Solution and any transactions involving the Solution shall be limited to the fees paid for the use of the Solution during the prior twelve (12) month period.

5.02 — Force Majeure: Neither QUMU nor CUSTOMER shall be liable for any failure to perform its obligations under this Agreement because of circumstances beyond its reasonable control, which circumstances shall include (without limitation) natural disaster; terrorism; riot; sabotage; labor disputes; war; acts or omissions of any government, governmental authority or third party; declarations of governments; transportation delays; power failure; computer failure; telecommunications failure; third party technology; or failure of a party to cooperate with the reasonable requests of the other party.

5.03 — CUSTOMER Indemnification: CUSTOMER shall release, defend, indemnify and hold harmless QUMU (including its officers, directors, employees, affiliates, independent contractors, distributors, agents and successors) against any expense, loss, cost or liability (including, without limitation, interest, penalties, attorney fees and paralegal fees) arising from any and all claims, demands, damages or actions resulting from or related to

  1. use of Solution by CUSTOMER, (including, without limitation, any claim regarding use of Solution by CUSTOMER in an infringing manner or any claim by third parties for breach of warranty, negligence, loss of data, libel, slander, unfair competition, trademark infringement, or invasion of privacy);
  2. performance of the Solution;
  3. CUSTOMER’s negligence or the acts (or any failure to act) of CUSTOMER hereunder;
  4. any breach by CUSTOMER of the obligations of CUSTOMER hereunder; or
  5. investigation or defense of any of the above or in asserting QUMU’s rights hereunder.

5.04 — Cooperation: CUSTOMER shall cooperate with QUMU by providing QUMU with information concerning the Solution as may be reasonably requested by QUMU from time to time.

5.05 – Warranty Disclaimer: THE SOLUTION AND SERVICES ARE PROVIDED “AS IS.” AND QUMU MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SOLUTION OR SERVICES INCLUDING ANY WARRANTY THAT THE SOLUTION OR SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING CUSTOMER CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, QUMU DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.

ARTICLE VI: UPTIME

6.01 — Service Commitment: QUMU will use reasonable efforts to make the Solution available with an Uptime Percentage (defined below) of at least 99.9%.

6.02 – Definitions:

  1. “Unavailable” and “Unavailability” means a period during which the Solution is not available to CUSTOMER.
  2. “Annual Uptime Percentage” is calculated by subtracting from 100% the percentage of 5 minute periods during each full calendar month period in which the Solution is in the state of “Unavailable.” Uptime Percentage measurements exclude downtime resulting directly or indirectly from any Exclusion (defined below).

6.03 – Exclusions and Maintenance: The Service Commitment does not apply to any Unavailability, interruption, suspension or termination of the Solution, or any other performance issues: (i) caused by factors outside of QUMU’s reasonable control, including any force majeure event, Internet access or related problems, or any other source that is not a “server side” fault; (ii) that result from any actions or inactions of CUSTOMER or any third party; (iii) that result from CUSTOMER’s equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within QUMU’s direct control); (iv) that are maintenance announced to CUSTOMER in advance of the interruption or (v) arising from QUMU’s suspension or termination of CUSTOMER’s right to use the Solution in accordance with the terms of this Agreement (collectively, the “Exclusions”).

QUMU will perform maintenance as it deems necessary. Maintenance will make the Solution Unavailable for at least one six (6) hour period each calendar quarter. QUMU will use reasonable efforts to perform maintenance on weekends and to provide CUSTOMER with twenty-four (24) hour notice but reserves the right to perform maintenance at other times as it deems appropriate. Functionality may be temporarily or permanently downgraded when QUMU in its discretion deems such downgrade to be appropriate in response to security incidents, malfunctions, or for other technical or business reasons. If a permanent downgrade results in the elimination or diminution of a function CUSTOMER determines it requires, QUMU will use reasonable efforts to provide CUSTOMER with a fix or workaround, but QUMU is not responsible for any direct or indirect damages incurred by CUSTOMER due to such downgrade.

ARTICLE VII: MISCELLANEOUS

7.01 — Assignments; Merger or Acquisition of Customer: CUSTOMER may not assign, transfer, rent or re-license or otherwise transfer any of its rights or obligations under this Agreement, and any attempt at such assignment will be void without the prior written consent of QUMU. For purposes of this Agreement, “assignment” shall mean use of the Solution for the benefit of any party to a merger, acquisition and/or other consolidation by, with or of CUSTOMER, including any new or surviving entity that results from such merger, acquisition and/or other consolidation.

7.02 – Public Announcement: All public announcements of the relationship of QUMU and CUSTOMER under this Agreement shall require the prior written approval of QUMU and CUSTOMER.

7.03 — Entire Agreement: This Agreement and any Order Forms, and any other attachment or exhibit to this Agreement contain the entire understanding of the parties and supersede

  1. previous verbal and written agreements between the parties and
  2. CUSTOMER’s purchase order, order confirmation or other purchasing related document concerning the Solution; and all conflicting terms of such verbal statement or document shall be of no force or effect.

In the event of a conflict between the terms of this Agreement and the terms of an Order Form, Statement of Work, or an attachment or exhibit to this Agreement, the terms of such Order Form, Statement of Work, or attachment or exhibit to this Agreement shall prevail.

7.04 — Amendments and Modifications: Alterations, modifications or amendments of a provision of this Agreement shall not be binding unless such alteration, modification or amendment is in writing and signed by QUMU and CUSTOMER.

7.05 — Severability: If a provision of this Agreement is rendered invalid, the remaining provisions shall remain in full force and effect. This shall not apply if it would be unreasonable for one of the parties to continue to be obligated under the terms of the Agreement.

7.06 — Captions: The headings and captions of this Agreement are inserted for convenience of reference and do not define, limit or describe the scope or intent of this Agreement or any particular section, paragraph, or provision thereof.

7.07 — Counterparts: This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

7.08 — Governing Law: This Agreement is made under and shall be governed by and construed in accordance with the laws of the State of Minnesota without regard to its conflicts of laws provisions. Any action at law or equity, or judicial proceeding arising directly, indirectly, or otherwise in connection with, out of, related to or from this Agreement or any provision hereof, shall be litigated only in the courts of the State of Minnesota, County of Hennepin, or the U.S. District Court, District of Minnesota. The CUSTOMER waives any right it may have to transfer or change the venue of any such action, suit or proceeding and further waives any claim of inconvenient forum. The United Nations Convention for the International Sale of Goods shall not apply to this Agreement, its execution, delivery or performance.

7.09 — Notice: Notices shall be in writing and shall be deemed delivered when delivered by commercial overnight delivery service, by courier, Certified or Registered Mail with Return Receipt Requested or by hand to the addresses set forth below for QUMU and for CUSTOMER. Notice shall be deemed given on the date of receipt as evidenced in the case of Certified or Registered Mail by Return Receipt, or date of acknowledgment of e-mail.

QUMU, INC.:  CUSTOMER: ______________________
 Att’n: Chief Financial Officer  Att’n: _____________________________
 510 1st Ave. N. Suite #305  __________________________________
 Minneapolis, MN 55403  __________________________________

7.10 — Waiver: Any waiver of a provision of this Agreement by a party shall not be binding unless such waiver is in writing and signed by an officer of the waiving party. Waiver by a party of any breach of this Agreement shall not constitute waiver of any other breach. Any failure by a party to enforce a provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision.

7.11 — Relationship of the Parties: It is agreed that the relationship of QUMU and CUSTOMER is primarily that of seller and purchaser respectively. Nothing herein shall be construed as creating a partnership, an employment relationship, or an agency relationship between the parties, or as authorizing either party to act as agent for the other. Each party shall maintain its separate identity.

7.12 — Assurances: Each party hereby represents and warrants that all representations, warranties, recitals, statements and information provided to the other under this Agreement are true, correct and accurate as of the Effective Date to the best of its knowledge.

7.13 — Litigation Expense: In the event of litigation or arbitration arising out of this Agreement, each party shall pay its own costs and expenses of litigation.

7.14 — Equitable Remedies: The parties hereby acknowledge that damages at law may be an inadequate remedy. Either party shall have the right of specific performance, injunction or other equitable remedy in the event of a breach or threatened breach of this agreement by the other party.

7.15 — U.S. Government Restricted Rights: If CUSTOMER is the U.S. Government or an agency or department thereof (collectively “Government”), the Solution is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government or an agency or department thereof is subject to restrictions as set forth in subparagraphs (c) (1) and (2) of the Commercial Computer Software Restricted Rights clause at 48 C.F.R. 52.227-19.

7.16 — Import and Export Compliance. In connection with this Agreement, each party will comply with all applicable import, re-import, export, and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, CUSTOMER is solely responsible for compliance related to the manner in which CUSTOMER chooses to use the Solution, including the transfer and processing of CUSTOMER’s content or data and the provision of CUSTOMER’s content or data to any third party.

7.17 – Security: QUMU shall maintain reasonable administrative, physical and technical safeguards for the protection, confidentiality and integrity of CUSTOMER data on the QUMU cloud infrastructure, in accordance with Qumu Information Security Management Systems and Policies. While reasonable safeguards are in place, CUSTOMER acknowledges that the Solution is not a secure content delivery solution when interfaced with public content distribution networks delivering content to third party devices.

Qumu will exclusively use Amazon Web Services to deliver cloud services under this Agreement. Amazon Web Services has successfully completed a Statement on Auditing Standards No. 70 (SAS70) Type II Audit, and has obtained a favorable unbiased opinion from its independent auditors. SAS70 certifies that a service organization has had an in-depth audit of its controls (including control objectives and control activities), which in the case of AWS relates to operational performance and security to safeguard customer data. AWS will continue efforts to obtain the strictest of industry certifications in order to verify its commitment to provide a secure, world-class cloud computing environment.

7.18 — Foreign Corrupt Practices Act Compliance. CUSTOMER represents and warrants that it is aware of and familiar with the provisions of the U. S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”) and its purposes, and will take no action and make no payment in violation of, or which might cause, CUSTOMER or QUMU to be in violation of, the FCPA. CUSTOMER further represents and warrants that no person employed by it in connection with the performance of its obligations under this Agreement is an official of the government of any foreign country, or of any agency thereof and that no part of any moneys or consideration paid hereunder shall accrue for the benefit of any such official. Notwithstanding anything to the contrary, if CUSTOMER takes any action that could constitute a violation of the FCPA, QUMU may immediately terminate this Agreement and/or any Schedule issued hereunder. CUSTOMER also certifies that CUSTOMER has in the last year, and that CUSTOMER will continue to, strictly comply with the FCPA.

7.18 – Exhibits: The following Exhibits are incorporated into this Agreement:

 Qumu Order Form and such additional Order Forms as are executed by the parties.

 Qumu Mutual Non-Disclosure Addendum

 Statement of Work

Qumu and CUSTOMER have caused this Qumu Cloud Services Agreement to be executed by their respective duly authorized representatives as of the Effective Date below.

CUSTOMER:_________________________ QUMU, INC.
Signed: _____________________________ Signed: _____________________________
Name: ______________________________ Name: ______________________________
Title: ______________________________ Title: ______________________________
Date: ______________________________ Date: ______________________________

 

QUMU MUTUAL NON-DISCLOSURE ADDENDUM

This Addendum is subject to the terms of the QUMU Cloud Services Agreement between QUMU and CUSTOMER (the “Agreement”) to which it is attached. All terms of the Agreement are incorporated herein by reference. Capitalized terms not defined in this Addendum are defined in the Agreement. In the event of a conflict, the terms of this Addendum control over the terms of the Agreement.

Each party may disclose to the other party certain confidential and proprietary business information relating to such party for the purpose of fulfilling its rights and meeting its obligations under the Agreement (the “Purpose”).

When a party discloses such party’s information, such party is referred to in this Addendum as “Disclosing Party,” and when a party receives information from a Disclosing Party, such party is referred to as “Receiving Party.”

In consideration of the premises and the promises contained herein, the parties, intending to be legally bound, agree as follows:

1. Definitions.

  1. “Confidential Information” means all information concerning the Agreement and the business and technical plans of a party to the Agreement which are disclosed to or learned by the other party.Information shall be considered “Confidential Information” irrespective of its form of recording, transmission, or communication (whether written, oral, tangible, demonstrative or otherwise) and shall be deemed “Confidential Information” regardless of whether such information is so labeled or identified.
  2. Notwithstanding the foregoing, the term “Confidential Information” shall not include information that: (i) was available to the Receiving Party on a non confidential basis prior to its disclosure by the Disclosing Party as evidenced by written documentation in existence as of the execution of the Agreement; (ii) is part of the public domain as of the date of the Agreement or subsequently becomes part of the public domain through no breach of the terms of this Addendum by the Receiving Party; (iii) was independently developed by or for the Receiving Party without use of or reference to any Confidential Information as evidenced by written documentation; or (iv) becomes available to the Receiving Party from a source (other than the Disclosing Party) who is not bound by a nondisclosure or confidentiality agreement with the Receiving Party and owes no other direct or indirect obligation of secrecy with respect to such information.
  3. The term “Representative” means an affiliate of a party (including any subsidiary or parent company) or an employee, officer, director, partner, agent, attorney, accountant, advisor or consultant of such party or such party’s affiliate.

2. Agreements of Non-Disclosure and Limited Use.

  1. The Receiving Party shall protect and safeguard the confidentiality of the Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event less than a commercially reasonable degree of care. The Receiving Party shall not at any time, in any manner, directly or indirectly, divulge or in any manner whatsoever disclose to any person or entity all or any portion of the Confidential Information except (i) to those of its Representatives who have a need to know such Confidential Information in connection with and in furtherance of the Purpose that are informed by the Receiving Party of the confidential nature of the Confidential Information and that are subject to confidentiality duties and obligations to the Receiving Party that are no less restrictive than the terms and conditions of this Addendum and (ii) as specifically authorized in advance and in writing by the Disclosing Party in connection with the furtherance of the Purpose.
  2. The Receiving Party shall not use any Confidential Information or permit the Confidential Information to be used by any of its Representatives except in furtherance of the Purpose.
  3. Upon the written request of the Disclosing Party, all Confidential Information shall be returned to the Disclosing Party or destroyed, at the Disclosing Party’s election. Notwithstanding any foregoing provision to the contrary, the Receiving Party may, if it so elects, retain one copy of the Confidential Information solely for evidentiary purposes (it being understood that the Confidential Information so retained shall be subject to the terms of this Addendum).
  4. If the Receiving Party or its Representatives are requested, legally compelled or required (by oral questions, interrogatories, requests for information, subpoena, civil investigative demand, or similar court or governmental process) to disclose any Confidential Information, the Receiving Party agrees that it will provide the Disclosing Party with prompt written notice of the request so that the Disclosing Party may seek an appropriate protective order or waive the Receiving Party’s compliance with the provisions of this Addendum. The Receiving Party agrees to reasonably cooperate with the Disclosing Party (at the Disclosing Party’s sole expense) in obtaining an appropriate protective order. If, failing the entry of a protective order or the receipt of a waiver hereunder, the Receiving Party or its Representatives are, in the opinion of the Receiving Party’s or its Representatives’ counsel, as the case may be, required or compelled to disclose the Confidential Information, such Receiving Party or Representative may disclose only that portion of the Confidential Information that is legally required without liability hereunder if such Receiving Party or Representatives agrees to exercise its reasonable efforts (at the Disclosing Party’s sole expense) to obtain assurance that confidential treatment will be accorded that information.
  5. The Receiving Party expressly agrees that it will be responsible and liable for the breach of this Addendum by any of its Representatives.

3. Effect of Conduct. The Receiving Party’s obligations under this Addendum are unconditional and shall not be excused by any conduct on the Disclosing Party’s part except prior voluntary public disclosure of such information or the Disclosing Party’s written consent to or waiver of such obligation. The parties agree that no failure or delay by the Disclosing Party in exercising any right, power or privilege under this Addendum will operate as a waiver thereof nor will any single or partial exercise thereof preclude any other or future exercise of any right, power or privilege hereunder.

4. Compliance with Laws. The Receiving Party will comply with all applicable securities laws in connection with the purchase or sale, directly or indirectly, of securities of the Disclosing Party for so long as the Receiving Party is in possession of any material non-public information concerning the Disclosing Party.

5. Miscellaneous.

  1. Section 2(a) of this Addendum shall survive any termination of the Agreement for a period of five (5) years from the date of termination and (ii) all other Sections and subsections of this Addendum will survive the termination of the Agreement in perpetuity.
  2. This Addendum represents the entire understanding and agreement between the parties with respect to Confidential Information and supersedes all prior or contemporaneous agreements, negotiations, understandings and representations relating to Confidential Information.