These Customer License and Services Agreement (this “Agreement”) set forth the terms and conditions under which Customer may use Balance Theory’s proprietary software-as-a-service platform (the “Balance Theory Platform”), which provides a rich catalogue of cybersecurity vendors (“Vendors”), a description of products offered by such Vendors (collectively, “Vendor Products”), an efficient method of managing cybersecurity investments in Vendor Products, and the ability to seamlessly connect with such Vendors, as well as the associated Services (as defined below) made available by Balance Theory, Inc. (“Balance Theory”). As used herein, “Customer” refers to the legal entity named in the applicable Platform account. The Balance Theory Platform includes its websites and all data, content and other materials made available to Customer therein by Balance Theory (such materials, “Platform Content”). “Services” includes support and maintenance services that Balance Theory provides to Customer with respect to the Balance Theory Platform, services to assist Customer with procurement of cybersecurity tools and resources in accordance with Exhibit A hereto, and any additional professional services requested by Customer and agreed to in an Order.  

By indicating acceptance of this Agreement via click through, electronic signature or other electronic means offered by Balance Theory, Customer agrees to be bound by the terms and conditions of this Agreement as of such applicable date (the “Effective Date”).  Any individual accepting this Agreement on behalf of Customer represents and warrants that he or she has the authority to bind Customer to this Agreement.  Customer may use the Balance Theory Platform and Services only in compliance with this Agreement and only if Customer has the power to form a contract with Balance Theory.  IF CUSTOMER DOES NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, CUSTOMER IS NOT PERMITTED TO USE THE BALANCE THEORY PLATFORM OR SERVICES. 

1. ACCOUNTS  

To access and use the Balance Theory Platform, Customer will need to create an account (the “Customer Account”). Customer will only create a Customer Account using its full legal entity name. By creating a Customer Account, the applicable individual represents and warrants that they have the right to act on behalf of Customer in so doing. Once a Customer Account is created, Customer can grant one or more of its personnel, contractors, or service providers (each, a “User”) the right to access the Balance Theory Platform under such Customer Account.  Customer will be responsible for all acts and omissions of all of its Users, including, without limitation, any breach of this Agreement by any such User. 

Customer agrees that all information it provides to Balance Theory in the applicable Customer Account is and will remain accurate and that it will promptly update any such information in the event of a change. Balance Theory reserves the right, but is not obligated, to utilize third party service providers to verify on an ongoing basis that data submitted by Customer in connection with the Customer Account is accurate. Customer agrees that Balance Theory may conduct any such verification and take such action in response as it deems appropriate in its sole discretion. 

In addition, Customer acknowledges and agrees that it is responsible for maintaining the confidentiality and security of any credentials associated with its Customer Account and that it will be responsible for all activities that occur under or in connection with its Customer Account. Balance Theory is not responsible for any losses arising from the unauthorized use of any Customer Account. Customer will promptly notify Balance Theory if it has reason to believe there has been any unauthorized use of its Customer Account.  

2. BALANCE THEORY PLATFORM  

Subject to compliance with the terms and conditions of this Agreement, Balance Theory will, during the Term, provide Customer and Users with access to and use of the features of the Balance Theory Platform based on Customer’s subscription thereto and will provide any purchased by Customer. Balance Theory will use commercially reasonable efforts to make the Balance Theory Platform available 24 hours a day, 7 days a week except for instances of scheduled maintenance or unavailability caused by circumstances outside of Balance Theory’s reasonable control (e.g., emergency downtime, force majeure and similar events).  

Subject to compliance with the terms and conditions of this Agreement, Balance Theory grants to Customer, during the Term, a fully paid-up, non-transferable, non-sublicensable, revocable right and license to use the Platform Content solely for Customer’s internal business purposes.  

From time-to-time during the Term, Balance Theory may update or change the features, functionality or other aspects of the Balance Theory Platform, available Platform Content, and/or associated Services, provided that such changes do not materially reduce the functionality of  any of the foregoing unless deemed necessary or useful, such as: (a) to maintain or enhance  the quality, efficiency, performance, or delivery of Balance Theory’s products or services or the competitive strength of or market for such products or services, or (b) to comply with applicable law and regulation. Balance Theory will use reasonable efforts to provide notice to Customer in advance of any such updates or changes. Customer agrees that its access to and use of the Balance Theory Platform and, if applicable, associated Services is not contingent upon the delivery of any future functionalities or features. 

Balance Theory will only process Customer Content in accordance with the rights granted by Customer to Balance Theory under this Agreement. “Customer Content” means data or content which Customer or any User provides, uploads, or inputs into the Customer Account within the Balance Theory Platform. During the Term, Balance Theory will maintain reasonable administrative, physical and technical safeguards designed to protect Customer Content, consistent with any law or regulation applicable to Balance Theory and its performance of this Agreement and consistent with Balance Theory’s then current practices and procedures. Balance Theory will promptly report to Customer any compromise of security that it becomes aware of with regard to Customer Content.  

3. CUSTOMER RESPONSIBILITIES 

Customer will use the Balance Theory Platform, Platform Content, and any associated Services (collectively, “Balance Theory Materials”) in accordance with the terms and conditions of this Agreement and the documentation provided by Balance Theory,  and in accordance with the scope of the applicable subscription purchased by Customer, and any applicable usage restrictions, such as the Subscription Period (as defined in Exhibit A), number of transactions and/or other usage parameters for the Balance Theory Platform and Services (collectively, “Approved Use”). Customer is permitted to access and use the Balance Theory Materials solely for its internal business purposes. Customer will use the Balance Theory Materials in accordance with all applicable laws and government regulations.  

Without limitation of the foregoing, Customer will not (and will ensure that its Users do not): (a) disassemble, decompile, reverse engineer or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of the Balance Theory Materials; (b) use or access the Balance Theory Materials to build a competitive product or service; (c) download (other than page caching) any Platform Content or any portion thereof other than as expressly permitted by Balance Theory; (d) disclose any benchmarking or performance testing of the Balance Theory Materials; (e) sell, license, sublicense, rent, lease, loan, transfer, or assign the Balance Theory Materials or reproduce, modify, publish, distribute, display, host, disclose, outsource or otherwise commercially exploit the Balance Theory Materials as part of a product or service provided to any third party or otherwise use the Balance Theory Materials on behalf of any third party; (f) use or allow the Balance Theory Materials to be used to train models (including generative artificial intelligence technologies); (g) use the Balance Theory Materials in any infringing, defamatory, harmful, fraudulent, illegal, deceptive, threatening, harassing, obscene, or misleading way; (h) use any Balance Theory Confidential Information to contest the validity of any Balance Theory intellectual property; (i) use or allow the Platform Content to be used in a manner that makes it impossible for the Platform Content to be deleted and/or expunged; (j) remove or destroy any copyright notices, other proprietary markings or confidentiality legends placed on or made available through the Balance Theory Materials; or (k) use the Balance Theory Materials other than for their intended use. Customer may access the Balance Theory Materials only through interfaces and protocols provided or authorized by Balance Theory and may not copy, co-brand, frame or mirror any part or content of the Balance Theory Materials without Balance Theory’s prior written consent in each instance.  

Customer’s cooperation may be required in order for Balance Theory to efficiently and effectively provide the Balance Theory Platform and/or associated Services. Customer agrees to comply with all of Balance Theory’s reasonable requests made in connection with the provision of the Balance Theory Platform and associated Services to Customer. Balance Theory will have no liability for any delays, deficiencies or failures that occur in the provision of the Balance Theory Platform or any associated Services as a result of (a) delays due to unanticipated Customer requests, (b) Customer’s failure to cooperate (including the cooperation of third parties under Customer’s control), or (c) Customer’s breach of this Agreement.  

Customer is responsible for obtaining and maintaining, at its sole cost and expense, any devices, hardware, or other resources necessary to use the Balance Theory Platform, including any Services. Balance Theory shall not be responsible for any such third-party products or services, or the contents of any linked external web sites operated by third parties. In addition, Balance Theory shall not be responsible for any Platform Content or any other data, content, information or other materials that may be available via the Balance Theory Platform, that was provided by third parties or obtained from publicly available sources, including, without limitation, any information or other content in Vendor profiles.  

Customer hereby grants Balance Theory the worldwide, non-exclusive, irrevocable (except as set forth below), royalty-free, sublicensable right and license to use, copy, display, store, adapt, and distribute Customer Content so that Balance Theory can operate, deliver, and improve its products and services, including, without limitation, making such Customer Content available to Customer’s Users, The foregoing license granted to Balance Theory is revocable by Customer by removing or deleting any such Customer Content , using the functionality provided on the Balance Theory Platform. Customer is responsible for ensuring it has all necessary rights to provide any Customer Content to Balance Theory for its use as set forth in this Agreement. Customer shall further have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all Customer Content and, without limiting the foregoing, will not provide to Balance Theory any Customer Content that (a) may violate applicable laws, including without limitation, any Customer Content that may menace or harass any person, cause damage or injury to any person or property, or violate the privacy rights or other rights of any individual, or (b) includes any personal information that would subject Balance Theory to additional or heightened legal, regulatory, or similar obligations, including, without limitation, personal information subject to the Health Insurance Portability and Accountability Act, the Gramm-Leach-Bliley Act, and/or the Payment Card Industry Data Security Standards.  

Customer and its Users may elect to interact with others, including Vendors, through the Balance Theory Platform, including by viewing Platform Content created by others and sharing Customer’s own content with such other individuals, (“Interactive Features”). Customer is solely responsible for its and its Users’ interactions with other individuals through the Balance Theory Platform. Balance Theory may, but has no obligation to, monitor Customer’s and its Users’ use of the Interactive Features to ensure compliance with this Agreement. Customer and its Users will not: (a) use the Interactive Features in a way that negatively affects others or Balance Theory’s ability to provide its products or services, (b) use the Interactive Features for any illegal or unauthorized purpose, or (c) use the Interactive Features to infringe upon or violate the rights of Balance Theory, other people using the Interactive Features, or any third party. Customer acknowledges that Balance Theory has no obligation actively review the content posted by Customer or others within the Interactive Features but may choose to do so or to reject or remove any such content in its sole discretion. Balance Theory will not be responsible for any liability incurred as the result of Customer’s or its Users’ interactions with others on the Interactive Features or use of content provided by other users via the Interactive Features. Customer is solely responsible for any Customer Content shared by Customer or its Users with others using the Interactive Features.  

Customer acknowledges and agrees that the information within the Platform Content made available to Customer via the Balance Theory Platform or in connection with any associated Services, is for general informational purposes only and does not constitute legal or professional advice. Customer is solely responsible for any and all decisions made, or actions taken by Customer or any of its Users, based on any use of the Platform Content, the Balance Theory Platform, or any associated Services, or otherwise based on any information or other materials provided by Balance Theory to Customer, and Balance Theory will have no liability in connection therewith.  

Customer may have the opportunity to receive access to certain new or updated “pre-release”, “beta” or other materials or features prior to their full commercial release (“Pre-Release Materials”), at Balance Theory’s option. Customer may choose to use such Pre-Release Materials or not in its sole discretion. Customer acknowledges and agrees that: (a) the Pre-Release Materials may impact the availability of, and Customer’s use of, the Balance Theory Platform, including certain Platform Content; (b) the Pre-Release Materials may not operate properly or be fully functional; (c) use of the Pre-Release Materials may result in unexpected results, loss of data, or business interruption; and (d) Balance Theory has the right unilaterally to abandon development, maintenance, and operation of the Pre-Release Materials, at any time and without any obligation or liability to Customer. Customer’s use of any Pre-Release Materials may be conditioned on acceptance of additional terms and, in any event, is subject to the confidentiality obligations in Section 10 below. All such Pre-Release Materials shall be considered to be made available on a trial basis and will be subject to the paragraph below. 

From time-to-time, Balance Theory may grant Customer access to or license certain features of the Balance Theory Platform and/or associated Services or other Balance Theory products or services on a free and/or trial basis. If Customer is granted any access under this Agreement in accordance with the foregoing, Customer agrees that (a) Balance Theory has no obligation to provide any particular level of service with respect thereto; and (b) Balance Theory may cease providing such access and/or terminate any such license at any time without notice. For the avoidance of doubt and without limiting the foregoing, all features of the Balance Theory Platform and/or associated Services or any other products or services made available by Balance Theory to Customer for no charge will be subject to this paragraph. NOTWITHSTANDING SECTIONS 8 AND 9 BELOW, BALANCE THEORY SHALL HAVE NO INDEMNIFICATION OBGLIATIONS, AND SHALL HAVE NO OTHER LIABILITY OF ANY KIND, FOR ANY FEATURES OF THE BALANCE THEORY PLATFORM,  ASSOCIATED SERVICES OR OTHER PRODUCTS OR SERVICES PROVIDED ON A FREE OR TRIAL BASIS, INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH ANY OF THE FOREGOING, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE. This Section supersedes any conflicting provision of this Agreement or of any Order. 

4. FEES, PAYMENT AND TAXES 

Customer will pay the fees associated with its access to the Balance Theory Platform and any Services as set forth in the applicable quote, order form, service request confirmation, or other document referencing this Agreement (any such purchase, an “Order”), whether or not such purchase occurs via the Balance Theory Platform or otherwise.  

Access to the Balance Theory Platform and Services is provided as a subscription, for an annual or other periodic basis as set forth in the applicable Order (the “Subscription Period”) for a fixed-fee based on Customer’s applicable subscription tier, unless otherwise set forth in the applicable Order. At the end of then-current Subscription Period, Customer’s subscription to the Balance Theory Platform and any applicable Services will be auto-renewed for successive Subscription Periods of equal length unless either party notifies the other of their intention not to renew at least thirty (30) days prior to the expiration of the then-current Subscription Period. Fees for subscriptions are invoiced in advance of each Subscription Period. In the event that Customer’s usage exceeds any applicable Approved Use for Customer’s applicable subscription tier, Balance Theory reserves the right to adjust the fees and issue an additional invoice, to account for such usage. If any such adjustment is required in the middle of a Subscription Period, the applicable fees adjustment will be on a pro-rated basis for the remainder of the Subscription Period. Balance Theory will notify Customer of any needed adjustments to Customer’s tier for a subsequent Subscription Period or any changes to the fees for the subsequent Subscription Period at least ninety (90) days prior to the expiration of the then-current Subscription Period. 

Balance Theory may offer Customer the ability to purchase certain Vendor Products from Balance Theory, as a reseller on behalf of the applicable Vendor. Customer acknowledges and agrees that for any such Vendor Products sold or licensed to Customer by Balance Theory, this Agreement shall govern the issuance of the applicable Order by Balance Theory and the payment of the associated fees by Customer. Customer’s access to and use of any such Vendor Products will be governed by either an existing agreement between Customer and the Vendor or, if no such agreement exists, the Vendor’s standard end user agreements, which Balance Theory will use commercially reasonable efforts to provide to Customer (as applicable, the “Vendor Agreement”). Balance Theory is not a party to any such Vendor Agreement between Customer and the Vendor. Any disputes related to the Vendor Products shall be handled directly between Customer and the Vendor. In no event will Balance Theory be liable for the acts or omissions of a Vendor or for any Vendor Products.  

From time-to-time, Balance Theory may also offer subscriptions to some or all of the Balance Theory Platform and/or Services through one or more of its authorized reseller partners (each, a “Reseller Partner”). If Customer purchases  any such subscription access and/or Services through a Reseller Partner, Customer shall enter into the Order directly with the Reseller Partner and shall pay the fees set forth in the applicable Order to the Reseller Partner in accordance with the terms and conditions set forth in the applicable Order. Notwithstanding the foregoing, Customer’s use of any such subscription access to the Balance Theory Platform or Services that are purchased via a Reseller Partner will remain subject to the terms and conditions of this Agreement. All fees in an Order with a Reseller Partner are due and payable by Customer to the applicable Reseller Partner. Any disputes related to the fees or invoicing shall be handled directly between Customer and the Reseller Partner. In no event will Balance Theory be liable for the acts or omissions of a Reseller Partner. No Reseller Partners are authorized to modify the terms and conditions of this Agreement.  

All fees due hereunder will be invoiced by Balance Theory hereunder will be in U.S. dollars, unless otherwise specified in the Order. Unless different payment terms are expressly set forth in the applicable Order, Customer will pay invoiced fees at the address or account designated by Balance Theory or the applicable Reseller Partner within the time period set forth on the corresponding invoice. Customer will only dispute invoices in good faith. To be eligible for an invoice adjustment, Customer must provide a written description of the disputed portion of the invoice within 30 days of receipt, otherwise Customer will waive the right to dispute any invoice.  

All fees payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales and use taxes, excise taxes, goods and services taxes, consumption taxes, value-added taxes, and any other similar taxes, duties, and charges of any kind imposed by any national, federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Balance Theory’s income. Customer shall indemnify Balance Theory for any taxes imposed upon Balance Theory for which Customer is responsible. 

5. TERM AND TERMINATION 

Unless terminated earlier pursuant to any of the Agreement’s express provisions, the term of this Agreement will commence on the Effective Date and will continue until terminated by a party hereto (“Term”).  

If there are no active Orders under this Agreement, either party may terminate this Agreement at any time, with or without cause, upon notice to other party. If there are active Orders under this Agreement, either party may terminate this Agreement and such active Orders upon written notice to the other party if the other party materially breaches this Agreement; provided, however, that: (i) if the breach is capable of being cured, the breaching party shall be given a 30 day period from the date of written notice of the breach to cure such breach and, if the breaching fails to so cure in such period, the non-breaching party may immediately terminate the Agreement with a second written notice to the breaching party at the end of such 30-day period, and (ii) if the breach is incapable of being cured, then the non-breaching party may terminate the Agreement immediately.  

Balance Theory may, in its sole discretion, immediately suspend access to, or notify Customer to stop use of, the Platform Content,  the Balance Theory Platform,  or any associated Services, if Customer violates a material restriction or obligation in the Agreement, or if in Balance Theory’s reasonable judgment, such content, product or service, or any component thereof, is about to suffer a material threat to security or functionality. Balance Theory will provide advance notice to Customer of any such suspension in Balance Theory’s reasonable discretion based on the nature of the circumstances giving rise to the suspension unless Balance Theory determines that prior notice is not feasible. Any suspension or termination by Balance Theory under this paragraph will not excuse Customer from its obligation to make payment(s) under this Agreement if the suspension or termination arises from Customer’s breach of this Agreement. 

In the event of any termination: (a) all of Customer’s rights under the Agreement will immediately terminate and Customer will immediately cease any access or use of the Balance Theory Platform or any associated Services; (b) if Balance Theory terminates the Agreement for material breach by Customer, then Customer will remain responsible for the remaining balance of the fees in Customer’s applicable Order(s) and Customer must pay within 30 days all such amounts plus related taxes and expenses; (c) any provisions in this Agreement or an Order that by their nature are intended to survive, will continue to apply in accordance with their terms. If Customer terminates this Agreement for material breach by Balance Theory, then Balance Theory will refund to Customer, within 30 days of termination, any unused pre-paid fees on a pro rata basis for the remaining applicable Subscription Period following the month in which the termination is effective, if applicable. 

6. OWNERSHIP RIGHTS 

Balance Theory owns and retains all right, title, and interest in and to the Balance Theory Materials, any software or technology utilized, created or reduced to practice in the provision of the Balance Theory Materials, and all Intellectual Property Rights contained therein or related thereto, including without limitation all copies, translations, adaptations, modifications, derivations, updates, and enhancements thereof (“Balance Theory IP”). Customer acknowledges that (a) no right or interest in the Balance Theory IP is conveyed other than the limited licenses granted herein, (b) the Balance Theory IP is protected by copyright and other intellectual property laws, and (c) the Balance Theory IP embodies valuable confidential information of Balance Theory or its licensors, the development of which required the expenditure of considerable time and money. Customer will not take or encourage any action during or after the Term that will in any way impair the rights of Balance Theory in and to the Balance Theory IP. “Intellectual Property Rights” means all patents, copyrights, moral rights, trademarks, trade names, service marks, trade dress, trade secrets and any other form of intellectual property rights now or hereafter recognized in any jurisdiction, including applications and registrations for any of the foregoing. Customer will not take any action that would foreseeably jeopardize Balance Theory’s or its licensors’ proprietary rights in the Balance Theory IP or seek to acquire any ownership interest in or to the Balance Theory IP or any component thereof. 

Customer owns and retains all right, title, and interest in and to the Customer Content, except for the limited licenses granted herein. In addition, Customer agrees that Balance Theory may (i) aggregate and de-identify Customer Content for use in providing Balance Theory’s services to its customers (“Aggregated Data”), and (ii) compile statistical and other information related to the performance, operation and use of any Balance Theory products or services by Customer (“Service Analyses”). Balance Theory may make Aggregated Data and/or Service Analyses available to third parties and/or publicly available; however, Aggregated Data and Service Analyses will not incorporate Customer Content or Customer Confidential Information in a form that could serve to identify Customer or any individual. Balance Theory retains all intellectual property rights in Aggregated Data and Service Analyses.  

Customer may have the option to provide Balance Theory with feedback, suggestions or comments regarding or in connection with the Balance Theory Platform, including any features, associated Services and/or Platform Content, or Balance Theory’s product or services more generally (“Feedback”) and consents to receive requests for such Feedback from Balance Theory periodically. Without limiting the generality of the foregoing, Customer will use commercially reasonable efforts to submit notice of any and all hardware or software bugs, defects, or other issues with the features, functionality, or performance of the Balance Theory Platform to Balance Theory promptly upon occurrence. Any such notices will be deemed Feedback. Customer hereby grants Balance Theory a non-exclusive, perpetual and irrevocable license to use and exploit such Feedback for any purpose, including incorporating such Feedback within its products and services, without providing payment or any other consideration to Customer. Balance Theory has no confidentiality or other obligations with respect to Feedback. 

7. WARRANTY DISCLAIMER 

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE BALANCE THEORY MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND CUSTOMER HEREBY WAIVES, RELEASES, AND DISCLAIMS, ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE PRODUCTS AND/OR SERVICES, OR ANY RESULT, INCLUDING ANY WARRANTY THAT THE BALANCE THEORY MATERIALS WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, THAT ANY MATERIALS OR DATA PROVIDED BY CUSTOMER OR A THIRD PARTY WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED, OR THAT DEFECTS IN THE PRODUCTS WILL BE CORRECTED; AND  EXCEPT TO THE EXTENT PROHIBITED BY LAW, BALANCE THEORY AND ITS LICENSORS DISCLAIM 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. NO ORAL OR WRITTEN INFORMATION, MARKETING OR PROMOTIONAL MATERIALS, OR ADVICE GIVEN BY BALANCE THEORY OR BALANCE THEORY’S AUTHORIZED REPRESENTATIVES OR RESELLER PARTNERS SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE EXPRESS WARRANTIES PROVIDED HEREIN. 

8. INDEMNITY 

Customer will defend, indemnify, and hold harmless Balance Theory and its affiliates, licensors, independent contractors and service providers, and each of their respective members, directors, officers, employees and agents (the “Balance Theory Parties”) from and against all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) relating to any third-party claim to the extent arising out of: (a) Customer’s breach of this Agreement or any Vendor Agreement entered into by Customer with a Vendor; (b) any claims from Customer’s Users, or (c) any Customer Content. For any claims under this Section, Customer shall obtain Balance Theory’s written consent prior to agreeing to any settlement.  

Balance Theory will defend any third party suit against Customer claiming that any Services performed by Balance Theory or the Balance Theory Platform purchased by Customer, as used in accordance with this Agreement, infringe a valid United States patent or copyright existing as of the Effective Date and will indemnify Customer for any final judgment against Customer or settlement approved by Balance Theory resulting from such third party suit provided Customer: (a) gives Balance Theory prompt notice when Customer becomes aware of the claim, including the nature of the claim and the amount of damages and nature of other relief sought; (b) gives complete authority and assistance (at Balance Theory’s expense) for disposition of the claim; and (c) makes no prejudicial admission about the claim. Balance Theory has no liability for any: (i) use of the Services or Balance Theory Platform other than in accordance with this Agreement; (ii) claims resulting from combining the Services or Balance Theory Platform with a product or software not supplied by Balance Theory; (iii) modification or customizations of the Services or Balance Theory Platform (including any Platform Content) by anyone other than Balance Theory; (iv) compromise or settlement made without written Balance Theory’s consent; (v) claims resulting from Customer’s failure to install or use updates, upgrades, error corrections, changes, or revisions if infringement would have been avoided by such use; or (vi) third party products or services. If a claim is made or is likely, Balance Theory may, at its option and expense: (x) obtain the right for Customer to continue using the Services or Balance Theory Platform in accordance with this Agreement; (y) substitute the allegedly infringing component of the Services or Balance Theory Platform with an equivalent, non-infringing component; or (z) modify the Services or Balance Theory Platform to be non-infringing. If options (x) through (z) are not commercially reasonable as determined by Balance Theory, Balance Theory may terminate this Agreement upon notice to Customer and credit Customer any prepaid fees paid by Customer for the Services and/or access to the Balance Theory Platform but not yet earned by Balance Theory. THIS SECTION 8.2 STATES BALANCE THEORY’S ENTIRE LIABILITY AND CUSTOMER’S SOLE RECOURSE AND EXCLUSIVE REMEDIES WITH RESPECT TO INFRINGEMENT. ALL WARRANTIES AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, WHETHER STATUTORY, EXPRESS OR IMPLIED, ARE DISCLAIMED.  

9. LIMITATION OF LIABILITY 

TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, (A) NEITHER PARTY WILL BE LIABLE (WHETHER IN CONTRACT OR IN TORT) UNDER ANY CIRCUMSTANCES FOR ANY INDIRECT, CONSEQUENTIAL (INCLUDING LOST OPPORTUNITIES OR PROFITS), OR PUNITIVE DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) THE AGGREGATE LIABILITY OF EACH PARTY ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), WILL NOT EXCEED THE GREATER OF THE TOTAL FEES PAID BY CUSTOMER TO BALANCE THEORY (INCLUDING, FOR THE AVOIDANCE OF DOUBT, FEES PAID VIA A RESELLER) FOR ALL PRODUCTS AND SERVICES  DURING THE PRECEDING 12 MONTHS AND $1000. THE ABOVE DISCLAIMERS AND LIMITATIONS OF LIABILITY SHALL NOT APPLY TO ANY DAMAGES ARISING FROM (I) EITHER PARTY’S BREACH OF ANY CONFIDENTIALITY TERMS SET FORTH HEREIN, (II) AMOUNTS OWED PURSUANT TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, (III) CUSTOMER’S BREACH OF THE INTELLECTUAL PROPERTY TERMS SET FORTH HEREIN OR ANY INFRINGEMENT BY CUSTOMER OF BALANCE THEORY IP, OR (IV) EITHER PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD.  

10. CONFIDENTIALITY 

“Confidential Information” means any information that one party (or its affiliate) discloses to the other party under this Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. Confidential Information of Balance Theory includes, without limitation, any Pre-Release Materials. Confidential Information of Customer includes, without limitation, the Customer Content (except to the extent made public or shared by Customer via the Balance Theory Platform). Each party reserves any and all right, title and interest (including, without limitation, any Intellectual Property Rights) that it may have in or to any Confidential Information that it may disclose to the other party under this Agreement. The receiving party of Confidential Information hereunder (“Recipient”) will protect the Confidential Information of the disclosing party (“Discloser”) against any unauthorized use or disclosure to the same extent that the Recipient protects its own Confidential Information of a similar nature against unauthorized use or disclosure, but in no event will use less than a reasonable standard of care to protect such Confidential Information. The Recipient will use any Confidential Information of the Discloser solely to exercise rights or perform obligations under this Agreement. The Recipient will not disclose any Confidential Information of the Discloser other than: (a) as required by applicable law, provided that the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof (unless prohibited by law), so as to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information; (b) with the written consent of the Discloser (which, for the avoidance of doubt, shall be deemed to include any selections, settings or other configurations made by Customer to share Customer Content with others via the Balance Theory Platform or otherwise via Balance Theory’s products or services); or (c) to contractors or service providers who are subject to confidentiality obligations at least as stringent as contained in this Agreement. 

In the event of any breach or threatened breach by the Recipient of its obligations under this paragraph, the Discloser will be entitled to injunctive and other equitable relief to enforce such obligations. Upon expiration or termination of the Agreement for any reason, the Recipient will, upon request of the Discloser, return to the Discloser, or destroy (with written certification of the same), all copies of the Discloser’s Confidential Information. 

The obligations under this Section 10 will not be interpreted or construed to apply to information: (a) that was known to Recipient prior to receiving the same from the Discloser in connection with this Agreement; (b) that is independently developed by the Recipient; or (c) that is acquired by the Recipient from another source without restriction as to use or disclosure. 

Notwithstanding the foregoing, Balance Theory may disclose this Agreement and any Confidential Information contained herein to actual or potential investors or purchasers, including Balance Theory’s legal and financial representatives, in connection with any Balance Theory financing, merger, or acquisition activities and the standard legal and financial due diligence conducted therewith. 

11. . MISCELLANEOUS 

Independent Contractors. This Agreement does not create any agency, partnership, or joint venture between the parties. This Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement unless it expressly states that it does. 

Publicity. Customer agrees that Balance Theory may refer to Customer by name, logo, trade name, service marks and trademarks and may briefly reference Customer’s business in Balance Theory’s marketing, promotional and other related materials and on Balance Theory’s web site, and Customer hereby grants Balance Theory a limited license to do so. 

Assignment. Neither party may assign or transfer this Agreement or any of its rights or obligations hereunder without the other party’s prior written consent, provided that Balance Theory may assign this Agreement without the Customer’s consent in connection with the sale of all or substantially all of its assets or business related to this Agreement, or a sale or other transfer of a controlling interest of Balance Theory or to any affiliate of Balance Theory, whether by merger, change of control, operation of law, reorganization, consolidation, sale of securities, or other legal means.  This Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns. 

Force Majeure. Neither party will be liable for, or be considered to be in, breach of or default under this Agreement on account of any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond such party’s reasonable control (including, without limitation, any act or failure to act by the other party). This paragraph will not apply to any payment obligation of either party. 

Applicable Law. This Agreement will be governed by the laws of the State of Delaware interpreted, construed and enforced in all respects in accordance with the laws of the State of Delaware without reference to its choice of law principles to the contrary. The 1980 UN Convention on Contracts for the International Sale of Goods or its successor will not apply to this Agreement. Each party hereby consents to the exclusive jurisdiction and venue of the state and federal courts located in the State of Delaware with respect to any claim arising under or by reason of this Agreement.  

Entire Agreement. This Agreement, together with all Orders, constitutes the complete and exclusive statement of all mutual understandings between the parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written. Any preprinted terms appearing in any Customer purchase order or similar document that differ from, are inconsistent with, or are in addition to the terms of this Agreement, shall be void. If a conflict occurs between this Agreement and any Order, this Agreement will control unless (a) an Order expressly identifies specific provisions of this Agreement that is to be modified and the manner in which it is to be modified (except as explicitly prohibited herein) or (b) otherwise required by applicable law. Any amendment must be in writing and signed by both parties. Notwithstanding the foregoing or any provision herein to the contrary, if Customer has entered into a separate, written negotiated version of this Agreement with Balance Theory, the terms and conditions of such separate Agreement will control. If any provision or part of a provision of this Agreement is determined to be illegal, invalid, or unenforceable, the validity of the remaining provisions will not be affected and will be enforced to the fullest extent of applicable law. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.  

Notices. Notices under this Agreement are sufficient if given in writing and in English to: (a) in the case of notices to Customer, Customer’s email or postal address set forth in an Order or in the Customer Account; and (b) in the case of notices to Balance Theory, to info@balancetheory.io or Balance Theory, Inc., Attn: Legal, 8110 Maple Lawn Blvd., Suite 200, Fulton, MD 20759. Notice will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable).  

Export.  Customer will comply with all applicable law regarding the export of items, software or technology, including ensuring that: (a) no equipment, technical data or software received from Balance Theory is exported or re-exported to any country, person or entity in violation of any U.S. sanctions or export controls (including to any sanctioned or restricted entities); and (b) that anything received from Balance Theory is not used or re-exported for a prohibited use under applicable law.  Further, Customer represents and warrants that it and its Users (i) are not located in, under the control of, or a national or resident of any country to which the United States has embargoed goods or services, or that has been designated by the U.S. Government as a “terrorist supporting” country; (ii) have not been identified as a “Specially Designated National” by the Office of Foreign Assets Control; (iii) have not been placed on the U.S. Commerce Department’s Denied Persons List;” and (iv) will not use any equipment, technical data or software received from Balance Theory if any applicable laws in its country prohibit you from doing so in accordance with this Agreement. 

Non-Solicitation. Customer agrees that the personnel of Balance Theory are critical to Balance Theory.  Therefore, Customer agrees not to solicit, make offers of employment, or hire in any capacity, either directly or indirectly, or enter into any consulting relationships or agreements with, any Balance Theory personnel associated with this Agreement during the Term of this Agreement and for a period of 1 year thereafter, provided that solicitations and subsequent hirings initiated through general newspaper or website advertisements and other general circulation materials not directly targeted at such individuals shall not be deemed solicitations in violation of this Section.   

Exhibit A 

Procurement Services 

1. General. As part of Balance Theory’s services to assist Customer with procurement of cybersecurity tools and resources (“Procurement Services”), Balance Theory will interface with Vendors directly on Customer’s behalf, negotiate pricing and discounts with Vendors of Customer, and otherwise assist Customer in managing its cybersecurity procurement and services to reduce Customer’s overall cybersecurity costs. Balance Theory may offer certain savings assurances to Customer as part of its Procurement Services, which will be identified in Customer’s Order for such Procurement Services or otherwise communicated by Balance Theory in writing, if applicable (“Guaranteed Savings”).  

2. Initial Audit. Each Customer who purchases Procurement Services will undergo an initial review of the Customer’s existing cybersecurity vendors and deals for which Customer wishes to use the Procurement Services (the “Initial Audit”). Balance Theory shall be entitled to rely on the information provided by Customer as part of the Initial Audit. For the avoidance of doubt, all information provided by Customer to Balance Theory, whether as part of the Initial Audit or otherwise in connection with the Procurement Services, will be deemed Customer Content.  

3. Required Use. If Customer elects to proceed with Procurement Services, Customer shall use the Procurement Services for all contracts specified in the Initial Audit during the Subscription Period. If at any point during the Subscription Period, Customer decides not to use the Procurement Services for any portion of such contracts or Customer independently decides cancel or downgrade any such contracts, then Balance Theory reserves the right to proportionately reduce any Guaranteed Savings to account for such changes.  

4. Customer Inputs. In order to enable Balance Theory to perform Procurement Services on Customer’s behalf, Customer will (collectively, “Customer Inputs”):  

• Complete the Initial Audit, including providing all information necessary therefore, within the time period requested by Balance Theory;  

• Make all current cybersecurity contracts for which Customer shall use the Procurement Services and which are documented in the Initial Audit available to Balance Theory promptly, but in any event no later than four (4) weeks after the Effective Date; 

• Meet with Balance Theory to discuss Customer’s cybersecurity budget and needs over the next year within four (4) weeks of the Effective Date and thereafter within four (4) weeks of each annual renewal;  

• Provide approvals within 2 business days or within such other time period as communicated by Balance Theory as a part of a request from Balance Theory to close a cybersecurity deal.  

Balance Theory will not be responsible or liable for any failure or delay to perform Procurement Services, and reserves the right to proportionately reduce any Guaranteed Savings for any deals not closed or otherwise negatively impacted (such as the loss of discounts, etc.), to the extent that Customer fails to provide or perform a Customer Input in a timely manner.  

5. Fees; Subscription Period. Balance Theory and/or a Reseller will provide Customer with a custom quote for Procurement Services. All Procurement Services are provided on an annual fixed fee basis, payable in advance, as set forth in the Agreement. The Subscription Period for Procurement Services will be one (1) year, unless otherwise set forth in the applicable Order. 

6. Guaranteed Savings. At the end of the Subscription Period, in the event the actual Savings (as defined below) accrued to Customer from the Procurement Services rendered by Balance Theory falls short of the Guaranteed Savings, then Customer is entitled to receive a credit equal to the percentage shortfall of the Guaranteed Savings as compared to the actual Savings accrued to Customer during the Subscription Period. The undisputed amount, if any, of credit back as a result of a shortfall in Guaranteed Savings shall become payable by Balance Theory (whether or not Customer’s Order is with a Reseller or directly with Balance Theory) at the end of the Subscription Period. Customer and Balance Theory shall discuss and agree on the form of such credit, which could include credits for Procurement Services in the subsequent Subscription Period. Notwithstanding the foregoing, the total amount of any credit to Customer shall be limited to no more than the actual Fees received by Balance Theory for Procurement Services provided to Customer during the Subscription Period.  

7. Exceptions. Balance Theory will not owe Customer any credits for falling short of the Guaranteed Savings or any other refunds of any sort in the event that: (i) any information provided by the Customer, whether as part of the Initial Audit or otherwise, is incorrect, (ii) any of the assumptions documented by Balance Theory as part of the Initial Audit are incorrect, or (iii) any failure by Customer to provide an approval or any other Customer Input in a timely manner. 

8. Savings. As used herein, “Savings” shall be calculated in one or more of the following ways:  

(i) Unit Cost Reduction: in case of upgrading cybersecurity software licenses, the Savings shall be the decrease in existing prorated contract cost or unit rates being paid by Customer as compared with the new such costs or unit rates, multiplied by the total number of such software licenses,  

(ii) Total Cost Reduction: in case of new procurements or ‘as is’ renewals, the Savings shall be the difference between initial quote or current price, as the case may be, and the final price negotiated by Balance Theory,  

(iii) Cost Avoidance: in case of duplicate software or under-utilized or unused tools or prospective new tools identified by Balance Theory, if Customer subsequent cancels such contracts or decides not to proceed with such contracts, the Savings shall be the actual money saved by Customer as a result of such cancellation, downgrades, or decisions, and  

(iv) Waivers and Credits: the Savings shall include any charges waived by Vendors or any other credits or complementary products or services issued by Vendors to Customer as a result of Balance Theory’s Services, at list price.  

Customer hereby acknowledges and agrees that Balance Theory’s records regarding assumptions, prices, costs, and otherwise shall be the records used to calculate all Savings. Balance Theory shall have the right, in its reasonable discretion, to adjust and/or further clarify the method of calculating Savings hereunder from time-to-time, upon prior written notice to Customer.