Master Subscription Agreement

General. Any licenses or grant of use rights with respect to Illumio Products require execution of an Order Form by and between you and Illumio, or between an Illumio-authorized channel partner and Illumio. Unless otherwise specified in the Agreement, the provisions of the Agreement will apply to all Products provided by Illumio. In addition, certain supplemental terms will apply to and govern only specific Products that are licensed, purchased or provided to You under the applicable Order Form (the “Supplemental Terms”), as set forth below:

• SaaS
• On-Premises Software
• Maintenance and Support Services
• Professional Services
• Training Services
• Privacy
• Security

Products License and Use Rights. Pursuant to the applicable Order Form(s) for Customer’s purchase of the SaaS or On-Premises Software, Illumio shall during the Subscription Term (a) provide Customer with the SaaS either on its own servers or through a third party hosting service provider; or (b) grant Customer a nonexclusive, revocable, limited, non-transferable, non-assignable, non-sublicensable, license to install and use the On-Premises Software on servers related hardware and software owned or controlled by Customer.

Fees. In consideration for Illumio providing the Products contemplated under the Agreement, You will pay Illumio the Fees specified in the applicable Order Form. The Fees will be invoiced in full upon execution of the applicable Order Form or, in the case of a renewal Order Form term, upon the annual anniversary of the initial Order Form. Except as otherwise specified in any Order Form, Fees are based on Products purchased and not actual usage of the Products. Except as otherwise provided herein, all Fees and payment obligations are non-cancellable and non-refundable. Customer will pay all taxes and duties assessed in connection with the Agreement, and the performance of the obligations hereunder, by any authority within or outside of the U.S., except for taxes payable on Illumio’s net income. Illumio will invoice You for all such taxes and duties unless You provide Illumio with a valid tax exemption certificate authorized by the appropriate taxing authorities. All amounts not paid when due under the Agreement will accrue interest daily (without the requirement of a notice) at a rate of one and one-half percent (1.5%) per month or the highest rate permissible by law, whichever is lower, until the unpaid balance is paid in full. Customer will cure a payment delinquency within thirty (30) days of Illumio’s delinquency notice, and if it fails to do so Illumio may suspend Your access to the Products until such amounts are paid in full or terminate the Agreement and/or applicable Order Form for breach in addition to any other rights and remedies available. This Section will in no way limit any other rights or remedies of Illumio. Upon automatic renewal of the Subscription Term for Products as provided in Section 14 (Subscription Term and Termination) below, the unit price will increase by five percent (5%) for each successive renewal Order Form term. If You purchased the Products through an Illumio-authorized channel partner, all payment-related terms (including, but not limited to, pricing, invoicing, billing, payment methods and late payment charges) will be set forth in Your agreement directly with such channel partner and such payment-related terms will supersede any conflicting terms set forth in this Section.

Customer Success and Compliance. In Illumio’s effort to continuously improve Our Products and enhance the value proposition for Customer, Illumio may collect and process technical and related information in an anonymous and aggregated form about Customer’s use of the Products to support and troubleshoot issues, provide Updates, analyze trends and inform Our professional services and related customer success teams in their support of Customer’s implementation. Illumio encourages Customer to provide feedback regarding improvements to the Products (the “Feedback”) and hereby grants Illumio a non-exclusive, worldwide, royalty-free, sublicensable, transferable, perpetual license to use, commercialize and distribute such Feedback without restriction. Illumio may periodically, but in no event more than once per three (3) months remotely review Customer’s use of the Products to support Illumio’s provision of Professional Services and related customer success teams and ensure Customer’s compliance with the Agreement and the applicable Order Form. On Illumio’s written request Customer will provide reasonable assistance to verify such compliance. If the review reveals that Customer has underpaid Illumio, then Illumio may invoice Customer for such underpaid amount, and Customer will pay Illumio for such amount in accordance with the payment terms in Section 3 (Fees).

Ownership of Illumio Intellectual Property. As between Illumio and Customer, Illumio owns all worldwide right, title and interest in and to the Products, including all Intellectual Property Rights therein, and Customer will not obtain any ownership right, title or interest therein. No license is granted in the source code of any Products. Customer: (a) will not delete or in any manner alter the copyright, trademark and other proprietary rights notices appearing on the Products as provided to Customer by Illumio; and (b) will reproduce such notices on all authorized copies it makes of the Products. At Illumio’s request and expense, Customer shall assist and cooperate with Illumio in all reasonable respects and shall execute documents and take such further action requested by Illumio to acquire, transfer, maintain, perfect and enforce Intellectual Property Rights and other legal protection for Illumio Materials arising from Professional Services.

Ownership of Customer Data. As between Customer and Illumio, Customer owns all worldwide right, title and interest in and to all Customer Data, and Illumio will not obtain any ownership right, title or interest therein. Customer hereby grants to Illumio a non-exclusive, worldwide, royalty-free, non-transferable (except as otherwise provided herein) right to access and use Customer Data as is necessary to provide the Products hereunder during the Subscription Term.

Restrictions. Customer will at all times provide Illumio with good faith cooperation and assistance and make available such information and personnel as may be reasonably required by Illumio in order to provide Customer with the Products. Customer: (a) will ensure that its Authorized Users comply with the terms and conditions of the Agreement, including the applicable Order Form; (b) will promptly notify Illumio of any suspected or alleged breach of the Agreement; and (c) will cooperate in good faith with Illumio with respect to: (i) any investigation by Illumio of any suspected or alleged breach of the Agreement; or (ii) any action by Illumio to enforce the terms and conditions of the Agreement. Illumio may suspend or terminate any Authorized User’s access to Products without prior notice to Customer in the event that Illumio reasonably determines that such Authorized User has breached the Agreement. Customer will, at all times, be responsible for all actions taken under an account of any Authorized User. Customer is responsible for the security of each Authorized User’s credentials and will not share (and will instruct each Authorized User not to share) such credentials with any other person or entity or otherwise permit any other person or entity access to or use of the Products. Customer has no right to and will not transfer, sublicense or otherwise distribute the Products to any third party. Except as necessary to maintain standard backups or archival systems as part of Customer’s ordinary IT practices specified in corporate policies, Customer will not copy the Products in whole or in part. Customer will not: (1) modify or lease, lend or rent the Products; (2) make the Products available on a service bureau, time sharing, rental, application services provider, hosting or other computer services basis to third parties; or (3) otherwise make the functionality of the Products available to third parties. Customer acknowledges that the Products constitute and contain trade secrets of Illumio and its licensors, and agrees that in order to protect such trade secrets and other interests neither Customer nor its Representatives will disassemble, decompile or reverse engineer the Products. Customer will not publish or use for any external purposes any reports or copies of the Product user interface that are generated either by, or for, Customer through use of the Products, without the express written permission of Illumio. Customer’s rights in the Products are limited to those expressly granted to Customer, and Illumio reserves all rights and licenses in and to the Products not expressly granted herein.

Confidentiality

1. The party receiving Confidential Information (“Recipient”) agrees: (i) to maintain the Confidential Information of the party disclosing such information (“Discloser”) in strict confidence; (ii) not to disclose such Confidential Information to any third parties; and (iii) not to use any such Confidential Information for any purpose other than to exercise its rights or perform its obligations under the Agreement. Recipient will treat Confidential Information of the Discloser with the same degree of care as it accords to its own Confidential Information, but in no event with less than reasonable care. Recipient may disclose the Confidential Information of Discloser to its directors, officers, employees, Authorized Users and subcontractors (collectively, “Representatives”), who have a bona fide need to know such Confidential Information; provided that each such Representative is bound by a legal obligation as protective of the other party’s Confidential Information as those set forth herein; and provided further, that Recipient is responsible for any breach of their Representatives’ confidentiality obligations under this Agreement.
2. The obligations of Recipient under Section 8(a) will not apply to any Confidential Information that: (i) is now or hereafter becomes generally known or available to the public, through no act or omission on the part of Recipient (or any of its Representatives, Affiliates, or agents) or any third party subject to any use or disclosure restrictions with respect to such Confidential Information; (ii) was known by or lawfully in the possession of Recipient, prior to receiving such information from Discloser without restriction as to use or disclosure; (iii) is rightfully acquired by Recipient from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (iv) is independently developed by Recipient without access, use or reference to any Confidential Information of Discloser.
3. The provisions of Section 8(a) will not restrict Recipient from disclosing Discloser’s Confidential Information to the extent required by any law enforcement agencies or regulators or compelled by a court or administrative agency of competent jurisdiction; provided that, to the extent permissible under law, Recipient uses reasonable efforts to give Discloser advance notice of such required disclosure as appropriate in order to enable Discloser to prevent or limit disclosure.
4. Upon termination or expiration of the Agreement or Support and Maintenance Services, Recipient will promptly return to Discloser or, at Discloser’s option, destroy all tangible items and embodiments containing or consisting of Discloser’s Confidential Information and all copies thereof and provide written certification of such return or destruction by an authorized person.
5. Recipient agrees that, due to the unique nature of the Confidential Information, the unauthorized disclosure or use of the Confidential Information will cause irreparable harm and significant injury to Discloser, the extent of which will be difficult to ascertain and for which there will be no adequate remedy at law. Accordingly, Recipient agrees that Discloser, in addition to any other available remedies, will have the right to an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Section 8, without the necessity of posting any bond or other security. Recipient will notify Discloser in writing immediately upon Recipient’s becoming aware of any such breach or threatened breach.

Third Party Components. The Products include third party software components, including open source software components under license from third parties (the “Third Party Components”). Additional information regarding the Third Party Components is available online at https://docs.illumio.com/.

Indemnification

1. Subject to Section 10(c) hereof, Illumio will defend, indemnify and hold Customer harmless from and against any damages, costs and expenses (including reasonable attorneys’ fees and other professional fees) that are awarded against Customer in a final non-appealable judgment or that are agreed to in settlement of a third party claim that Customer’s use of the Products infringe or misappropriate any U.S. patent, copyright or trade secret of such third party. Illumio’s obligations under this Section will not apply to the extent any claim results from, or is based upon, (i) any combination, operation or use of the Products with any product, system, device, method or data not provided by Illumio, if such claim would have been avoided but for such combination, operation or use; or (ii) Customer’s or an Authorized User’s use of the Products other than in accordance with the Agreement and the Documentation. THE FOREGOING PROVISIONS OF THIS SECTION SET FORTH ILLUMIO’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND BY THE PRODUCTS OR ANY USE THEREOF.
2. Customer will defend, indemnify and hold Illumio harmless from and against any damages, costs and expenses (including reasonable attorneys' fees and other professional fees) that are awarded against Illumio or that are agreed to in settlement of a third party claim that Customer Data infringes or misappropriates any U.S. patent, copyright, or trade secret or privacy right of any third party.
3. As a condition to the parties’ respective obligations under this Section, the party seeking indemnification (the “Indemnitee”) will: (i) promptly notify the other party (the “Indemnitor”) of the claim for which it is seeking indemnification; (ii) grant the Indemnitor sole control of the defense and settlement of the claim; and (iii) provide the Indemnitor, at the Indemnitor’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim. The Indemnitee has the right to retain counsel, at its expense, to participate in the defense or settlement of any claim. The Indemnitor will not be liable for any settlement or compromise that the Indemnitee enters into without the Indemnitor’s prior written consent.
4. In the event the Indemnitee invokes the Indemnitor’s obligations under this Section 10, the Indemnitor may (i) contest the claim; (ii) obtain the applicable claimant’s permission for the Indemnitee’s continued access and use of the Products or data in question; (iii) avoid the claim by replacing or modifying the Products or data in question with a substantially similar equivalent; (iv) or if in the Indemnitor’s commercially reasonable judgement the foregoing are infeasible, then the Indemnitor may with ninety (90) days’ prior notice terminate the Products in question and provide Customer a pro-rata refund of prepaid subscription Fees for the remainder of the Subscription Term after the effective date of termination.

Warranty; Disclaimers. Illumio warrants (the “Warranty”) that, for the first ninety (90) days of the initial Order Form term, the Products purchased by Customer in such Order Form and deployed by Customer in its production environment according to the Licensed Configuration will materially conform to the Documentation. In the event Customer experiences a non-conformity, Customer will submit a support request referencing this Warranty (a “Warranty Claim”) to which Illumio will respond pursuant to the Maintenance and Support Services Supplemental Terms. In the event such non-conformity persists without relief for more than sixty (60) days after Illumio’s receipt of a Warranty Claim, then Customer may terminate the affected Products and Illumio will provide Customer a pro-rata refund of any prepaid subscription Fees for the remainder of the Subscription Term after the effective date of termination. This warranty will not apply to any non-conformity due to a modification or defect in a Product that is caused by any person other than Illumio or under Illumio’s direction. This Section 11 provides Customer’s sole and exclusive rights and remedies, and Illumio’s sole and exclusive liability, in connection with the Warranty.

Exclusion of Damages; Limitation of Liability. In no event will either party be liable to the other party for any indirect, incidental, exemplary, punitive or consequential damages (including without limitation loss of use, data, business or profits) or for the cost of procuring substitute products arising out of or in connection with the Agreement or the use, operation or performance of the Products, whether such liability arises from any claim based upon contract, warranty, tort (including negligence), product liability or otherwise, and whether or not a party has been advised of the possibility of such loss or damages (the “Exclusion of Damages”). The total aggregate liability of either party arising under the Agreement, from all causes of action and all theories of liability, will not exceed the amounts paid to Illumio by Customer in the twelve (12) month period preceding the claim or action giving rise to any liability (the “Limitation of Liability”). The Limitation of Liability shall not apply to: (a) a party’s indemnification obligations under Section 10 (Indemnification); (b) breach of a party’s confidentiality obligations under Section 8 (Confidentiality); or (c) infringement by a party of the other party’s Intellectual Property Rights. The parties expressly acknowledge and agree that Illumio has set its Fees and entered into this Agreement in part in reliance upon the Exclusion of Damages and Limitations of Liability specified herein, which allocate the risk between Illumio and Customer and form a basis of the bargain.

Data Processing. To the extent the engagement governed by the Agreement entails the processing of personal data, such processing is governed by the Privacy Supplemental Terms, unless Illumio already has a signed data processing agreement with Customer for such Products; in which case, the signed version governs the processing of personal data.

Subscription Term and Termination. Subject to Customer’s compliance with the terms and conditions of the Agreement, this Agreement will be in effect for as long as Customer is licensed to use any Product pursuant to an active Order Form (the “Subscription Term”). In addition to any termination rights set forth elsewhere herein, each party will have the right to terminate the Agreement if the other party breaches any material term of the Agreement and fails to cure such breach within thirty (30) days after receiving written notice thereof. Each party has the right to terminate the Agreement immediately upon notice if the other party becomes the subject of a petition in bankruptcy or similar legal proceeding arising from its insolvency, receivership or assignment for the benefit of creditors, provided that the underlying case is not dismissed within sixty (60) days. An Order Form term shall automatically be extended for consecutive additional Order Form terms of one (1) year, unless a party delivers, at least sixty (60) days before the expiration of the Order Form term, written notice to the other party of its intent not to renew or extend the Subscription Term. Each party will have the right to terminate an individual Order Form if the other party breaches any material term of such Order Form and fails to cure such breach within thirty (30) days after written notice thereof. For the avoidance of doubt, termination of an Order Form (or any discrete Products within an Order Form) shall not affect any other Products that Customer has purchased under the same or any other Order Form(s). Customer shall be liable for payment of all Fees, costs and expenses up to the effective date of termination (for Illumio’s uncured material breach) for (a) any completed, partially completed or scheduled Professional Services; (b) any reasonable committed costs or expenses; (c) any non-refundable travel costs including visa costs and related expenses. Upon termination of any Order Form or part thereof before end of the Subscription Term due to Illumio’s uncured material breach, Illumio will, within thirty (30) days of the effective date of termination, provide Customer a pro-rata refund of prepaid subscription Fees for the remainder of the Subscription Term after the effective date of termination. Upon any termination or expiration of this Agreement for any reason, all licenses granted to Customer in this Agreement and in all Order Forms will terminate immediately and: (i) Customer will (1) immediately cease use of the Products and (2) promptly return to Illumio the On-Premises Software and Documentation and all copies and portions thereof, in all forms and types of media; and (ii) Customer will provide Illumio with an officer’s written certification, certifying to Customer’s compliance with the foregoing. The rights and obligations of Illumio and Customer contained in Sections 3 (Fees), 4 (Customer Success and Compliance), 5 (Ownership of Illumio Intellectual Property), 8 (Confidentiality), 10 (Indemnification), 12 (Exclusion of Damages; Limitation of Liability), 13 (Data Processing), 14 (Subscription Term and Termination), 15 (Affiliates), 16 (Miscellaneous) and 17 (Definitions) will survive the expiration or termination of this Agreement.

Affiliates. Affiliates of Customer may purchase Products by executing an Order Form referencing the then-existing Agreement by and between Customer and Illumio, provided that the terms and conditions of such Agreement shall govern all such Order Forms and such Affiliate complies with such terms and conditions. Customer shall be responsible and remain liable for the performance of any obligations of the Affiliate in connection with any Order Form executed by such Affiliate, except that an Affiliate may enter into a separate Agreement with Illumio, in which case Customer shall not be responsible or liable for the performance of such obligations.

Miscellaneous. The Products are “commercial items” (FAR 2.101), consisting of “commercial computer software” and “commercial computer software documentation” (FAR 12.212 and DFARS 227.7202). If the Products are being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in the Products will be only those specified in the Agreement. If Customer is incorporated or has its principal place of business within the Americas, the Agreement will be governed by and construed in accordance with the laws of the State of California excluding that body of laws known as conflicts of law; and any legal action or proceeding arising under the Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the parties hereby irrevocably consent to the personal jurisdiction and venue therein. If Customer is incorporated and has its principal place of business outside the Americas, the Agreement will be governed by and construed in accordance with the laws of England and Wales excluding that body of laws known as conflicts of law; and any legal action or proceeding arising under the Agreement will be brought exclusively in the courts located in London, England and the parties hereby irrevocably consent to the personal jurisdiction and venue therein. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Neither party may assign or transfer the Agreement by operation of law or otherwise without the other party’s prior written consent except (a) in the case of a merger, acquisition, reorganization, sale of substantially all assets or equity, or (b) to such party’s Affiliate. Except as expressly set forth in the Agreement, the exercise by either party of any of its remedies under the Agreement will be without prejudice to its other remedies under the Agreement or otherwise. Illumio may use Customer's name and logo on its website and in its promotional materials to state that Customer is a customer of Illumio and a Product user. Customer agrees to serve as a reference customer of Illumio and shall cooperate with Illumio’s reasonable marketing and referencing requests. All notices or approvals required or permitted under the Agreement will be in writing and delivered by confirmed facsimile transmission, by overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All notices or approvals will be sent to the addresses set forth in the applicable Order Form or to such other address as may be specified by either party to the other in accordance with the Agreement. The failure by either party to enforce any provision of the Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of any provision of the Agreement will be effective only if in writing and signed by authorized representatives of both parties. Neither party will be responsible for any failure or delay in its performance under the Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, terrorism, riot, trespass, theft or other criminal acts, pandemic, acts of God or governmental action (“Force Majeure”). In the event any of the provisions of the Agreement are found by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not be affected, and such remaining provisions shall remain in full force and effect. Customer acknowledges that Illumio’s Products are subject to U.S. Export Administration Regulations (“EAR”) and agrees to comply fully with all relevant export laws and regulations, including those of the United States to ensure that no Products are: (a) exported or re-exported directly or indirectly in violation of such export laws; or (b) used for any purposes prohibited by such export laws, including but not limited to nuclear, chemical or biological weapons proliferation. Customer represents and warrants that it is not located in, and will not use Illumio’s Products in connect with, any country subject to U.S. export restrictions (currently including Cuba, Iran, North Korea, Syria, and the Crimea Region of Ukraine). The Agreement is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, understandings or communications between the parties, oral or written, regarding such subject matter. In the event of a conflict between the terms and conditions of this Agreement and any other document pertaining to the Products or Services hereunder (including without limitation any underlying Intellectual Property Rights), this Agreement will control unless by a duly executed Order Form or amendment the parties expressly set forth the specific provisions mutually agreed to control. The parties to the Agreement are independent contractors and the Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. Any additional, supplemental or varying terms in any other Customer purchase order or similar document will be disregarded and have no effect.

Definitions. Certain capitalized terms used herein will have the definitions ascribed thereto as set forth below: