Master Services Agreement

1 Defined Terms

The defined terms in Schedule 1 to this MSA shall apply to the Agreement.

2 Services

2.1. Ionstream shall provide the Services per the Agreement and all laws applicable to Ionstream. Ionstream shall have no obligation to provide Services to Customer in the event Customer does not meet Ionstream supportable requirements. Customer remains liable for the acts and omissions of Customer’s end users. Ionstream authorizes Customer to use, operate, orchestrate, resell, and provide the Services to its customers as part of Customer’s managed compute offering, and to sublicense access to end users in the ordinary course of that offering. Ionstream acknowledges that the Services are being procured for this purpose.

2.2. Customer may use the Services for commercial purposes only and may not use the Services in any situation where the Services or Customer’s Environment’s failure or fault could lead to death or serious bodily injury of any person or physical or environmental damage.

2.3 In the event that Ionstream needs to update the Services to reflect changes in applicable laws, technology, or industry practices, Ionstream shall provide Customer with not less than thirty (30) days’ prior written notice of any such update except where legally infeasible. Any such update shall not materially reduce or adversely affect the performance, features, functionality, security, or availability of the Services.

3 Customer Obligations

3.1. Customer shall make commercially reasonable efforts to cooperate with Ionstream’s appropriate investigation of outages and security problems. Customer is responsible for keeping its account permissions, billing, and other account information current. Customer agrees that its use of any Managed Service shall comply with the Acceptable Use Policy (AUP). Customer is responsible for determining the suitability of the Services and Customer’s compliance with any applicable laws, including export laws and data privacy laws, rules, and regulations.

3.2. Ionstream shall provide support only to individuals (account holders) designated as Account Owner, Administrator, Billing Contact, PPOC (Primary Point of Contact) or PTPOC (Primary Technical Point of Contact) in the Ionstream Nexus portal and is not required to provide any support directly to Customer’s end users, unless contracted and explicit SLOs are agreed upon. Customer shall cooperate with and assist Ionstream to the extent necessary in the provision of the Service(s), including without limitation the provision of reasonable access to Customer’s facilities and equipment to the extent reasonably necessary for Ionstream’s performance hereunder. Customer will designate and make available to Ionstream at least one qualified agent of Customer who shall (i) have authority to act on behalf of Customer, (ii) manage all activities which are Customer’s obligations hereunder, (iii) provide information and data concerning Customer’s operations and activities, (iv) advise Ionstream of Customer’s requirements, (v) provide access to Customer’s facilities at all reasonable times during the performance of the Service(s) required pursuant to this Agreement, and (vi) provide appropriate access to work space for Ionstream at Customer’s premises.

3.3. Customer is responsible for ensuring the integrity and security of Customer Data and for regularly backing up and validating the integrity of backups of Customer Data on an environment separate from Customer’s Environment. Ionstream shall only back up Customer Data to the extent explicitly stated on a Customer Success Order which shall be in addition to any backup maintained by Customer or its customers and end-users.

4 Security

Customer shall use reasonable security measures and precautions in connection with its use of the Services, including appropriately securing and encrypting in transit and at rest Sensitive Data stored on or transmitted using Customer’s Environment; and shall take appropriate measures to otherwise prevent access to Sensitive Data by Ionstream where Ionstream’s access to the premises, systems or networks managed or operated by Customer may result in its exposure. Customer Data is and always shall remain Customer’s exclusive property. Ionstream shall not use or disclose Customer Data except as materially required to perform the Services or as required by law, rule, regulation, or legal process. Ionstream shall notify Customer in writing within twenty-four (24) hours of its discovery of any actual or reasonably suspected Security Incident (meaning any event that results in unauthorized access to, or compromise of, Customer Data, Customer’s Environment, or the infrastructure from which the Services are delivered), including reasonably available details regarding the nature and scope of the incident, the Customer Data or systems affected, corrective actions taken or planned, and a point of contact for ongoing communications, and shall provide all information reasonably requested by Customer to support Customer’s regulatory and contractual notification obligations.

5 Intellectual Property

5.1. Pre-Existing. Each party shall retain exclusive ownership of Intellectual Property created, authored, or invented by it before the Services’ commencement. If Customer provides Ionstream with its Customer IP, Customer as a result of this grants to Ionstream, during the term of the applicable Customer Success Order, a limited, worldwide, non-exclusive, non-transferable, royalty-free, right and license to access and use Customer IP solely to provide the Services.

5.2. Proprietary Rights; Deliverables. Unless otherwise explicitly stated in the applicable Customer Success Order, and excluding any Customer IP, as between the parties, Ionstream shall own all right, title, and interest in and to the Intellectual Property created by or on behalf of Ionstream in providing the Services or otherwise contained in the Deliverables, however for any Intellectual Property or other work product that is created, Customer Data shall be the sole and exclusive property of Customer. Subject to Customer’s compliance with the terms of the Agreement, Ionstream grants to Customer a limited, worldwide, non-exclusive, non-transferable, royalty-free right and license (without the right to sublicense) to use: (A) Any Intellectual Property provided by Ionstream to Customer as part of the Services (excluding Third Party Software, Open-Source Software, and Deliverables) solely for Customer’s internal use and as necessary for Customer to enjoy the benefit of the Services during the term of the applicable Customer Success Order; and (B) Any Intellectual Property provided by Ionstream to Customer as part of the Deliverables (excluding Third Party Software and Open Source Software) solely for Customer’s internal use in perpetuity. Notwithstanding any contrary provisions in the Agreement, if Client requests or suggests changes to Company’s products or services, absent a separate custom development agreement, Client grants Company the right to incorporate such changes or suggestions into Company’s products and services without restriction and sole ownership of the incorporated work product.

5.3. Open Source. Ionstream shall not use any Open-Source Software that would in any way create an ownership interest in, or license to, any Customer Data. In the event Ionstream distributes or otherwise provides for Customer use any Open-Source Software to Customer as part of the Services and/or Deliverables, such Open-Source Software shall be subject to the terms of the applicable open source license(s). To the extent there is a conflict between this MSA and the terms of the appropriate open-source license(s), the open-source license(s) shall control.

5.4. Third Party Software. Ionstream may provide Third Party Software for Customer’s use as part of the Services and/or Deliverables or to assist the Services’ delivery. Unless otherwise permitted by the terms of the applicable license, Customer may not: (i) assign, grant, or transfer any interest in Third Party Services or Third Party Software to another individual or entity; (ii) reverse engineer, decompile, copy, or modify the Third Party Software;(iii) modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on the Third Party Software or Open Source Software; or (iv) exercise any of the reserved Intellectual Property rights provided under the laws governing the Agreement. Customer may only use Third Party Services and Third-Party Software supplied for its use as part of the Services (identified on the Customer Success Order) on that portion of Customer’s Environment for which it was initially provided, subject to any additional restrictions specified in the Service Descriptions or Customer Success Order. Customer shall not be permitted to access any Third-Party Software that Ionstream installs solely to assist Ionstream’s services delivery. Upon termination of the Customer Success Order, Customer shall remove any Third-Party Software installed by Ionstream or its Representatives on Customer’s Environment. Ionstream makes no representation or warranty regarding Third Party Services, Open Source Software, or Third Party Software except that Ionstream has the right to use or provide the Third-Party Services, Open Source Software, or Third-Party Software.

5.5. Customer Provided Licenses. If Customer uses any non-Ionstream provided software on or in conjunction with Customer’s Environment, Customer represents and warrants to Ionstream that Customer has the legal right to use such software. If Ionstream has agreed to install, patch, or otherwise manage software in reliance on Customer’s license with a vendor, Customer represents and warrants that it has a written license agreement with the vendor of such software that permits Ionstream to perform such activities as are necessary to perform the Services for Customer. Ionstream’s obligation to install, patch, or otherwise manage Customer-provided software provided by Customer is strictly contingent on Customer maintaining original software vendor support or similar authorized support that provides a services request escalation path, access to patching, and software upgrades, as applicable. On Ionstream’s request, Customer shall certify in writing that Customer complies with this Section’s requirements and any other software license restrictions that are part of the Agreement and shall provide evidence of Customer’s compliance as Ionstream may reasonably request. If Customer fails to provide the required proof of licensing to Ionstream and continues to use such software, Ionstream may: (i) charge Customer its standard fee for the use of the software in reliance on Ionstream’s licensing Agreement with the vendor until the required evidence is provided, or (ii) suspend or terminate the applicable Services.

5.6. Infringement. If the delivery of the Services or provision of Deliverables infringes the Intellectual Property of a third party, Ionstream shall, at its option: (i) obtain the right to use the infringing element; or (ii) modify the Services or Deliverables such that they do not infringe.

6 Fees

6.1. Fees. Undisputed Fees are payable fifteen (15) days from Customer’s receipt of invoice. Customer may withhold amounts disputed in good faith pending resolution and such withholding shall not constitute a breach. If undisputed Fees remain unpaid more than fifteen (15) days after the payment due date and Customer has not cured within fifteen (15) days of written notice, Ionstream may suspend the affected Services. If Customer has arranged for payment by credit card or automated clearing house, Ionstream may charge Customer’s card or account 15 days after the invoice date. Invoices that are not disputed within 180 (180) days of the invoice date are conclusively deemed to be accepted as accurate by Customer. Customer shall pay the Fees in U.S. Dollars, and, except as expressly permitted in Section 6.3, without setoff, counterclaim, deduction, or withholding. Ionstream may charge interest on overdue amounts at the lesser of one percent (1%) per month or the maximum legal rate and may charge Customer for any cost or expense arising out of Ionstream’s collection efforts.

6.2. Fee Increases. (A) Ionstream Fee Increases. Ionstream may increase Fees following expiration of the Initial Term, any Renewal Term, or during any Auto- Renewal Term subject to mutual agreement with 90 day’s notice. Customer may then reject the changes which will serve to terminate the contract.

6.3. Taxes. All amounts due to Ionstream under the Agreement are exclusive of Taxes. Customer shall pay Ionstream any Taxes that are due, or pay directly to the appropriate tax authority, or provide Ionstream with satisfactory evidence of Customer’s exemption from the Tax(es) in advance of invoicing. Customer shall provide Ionstream with accurate and adequate documentation sufficient to permit Ionstream to determine if any Taxes are due. All payments to Ionstream shall be made without any withholding or deduction for any taxes except for Local Withholding Taxes. Customer agrees to timely provide Ionstream with accurate factual information and documentation of Customer’s payment of any such Local Withholding Taxes. Ionstream shall remit such cost to Customer in the form of a credit on Customer’s outstanding account balance following receipt of sufficient evidence of payment of any such Local Withholding Taxes.

6.4. Reimbursement for Expenses. Unless otherwise agreed in the Customer Success Order, if any of the Services are performed at Customer’s premises, Customer agrees to reimburse Ionstream for the actual substantiated out- of-pocket expenses of its Representatives in performing such Services.

7 Warranties & Disclaimers

7.1. Mutual Warranties. Each party warrants to the other that (i) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder and (ii) the performance of its obligations and duties hereunder do not and will not violate any agreement by which it is bound.

7.2. Ionstream Warranties. Ionstream represents and warrants that it shall perform the Services in a workmanlike and professional manner and that the Services will comply with performance standards established in the applicable Customer Success Order. Other than with respect to credits issued pursuant to Attachment A, Service Level Agreement, Ionstream’s sole obligation, and Customer’s sole remedy, for any breach of the foregoing warranty shall be that Ionstream shall, at Ionstream’s option and as applicable, use commercially reasonable efforts to re-perform, repair or replace the relevant Services.

7.3. Services. Ionstream makes no commitment to provide any services other than the Services stated in a Customer Success Order. Ionstream is not responsible to Customer or any third party for unauthorized access to, use, disclosure of, or processing of Customer Data, including, without limitation, Sensitive Data, or for unauthorized use of the Services. To the maximum extent permitted by law, Ionstream disclaims all responsibility for any situation where the security, availability, or stability of the Services is compromised by: (i) actions of Customer or any end user; (ii) software provided by Customer, (iii) any actions taken by Ionstream which are requested by Customer, or (iv) third party threat actors.

7.4 Unsupported Services. Ionstream may not reclassify any Services committed in a Customer Success Order as “Unsupported”. Services that were not committed in the CSO and that Ionstream agrees to provide on an ad hoc basis may be designated as Unsupported at the time of the ad hoc request. Any change in the supported status of Services requires Customer’s written consent. Ionstream makes no representation or warranty with respect to Unsupported Applications Service or technology except that it shall use reasonable efforts as may be expected of technicians having generalized knowledge and training in managed infrastructure. Ionstream shall not be liable to Customer for any loss or damage arising from the provision of Unsupported Systems or Services and SLA(s) shall not apply to Unsupported Services, or any other aspect of Customer’s Environment that is adversely affected by Unsupported Systems or service. If Customer uses any Test Services, then Customer’s use of those Proof of Value (POV) is subject to POV terms. At Customer’s request, Ionstream may provide services that are not required by the Agreement. Any such services shall be provided AS-IS with no warranty whatsoever.

7.5 Customer Warranties. Customer hereby represents and warrants that Customer will not, and will not permit others to, use any Service(s) (i) for any unlawful or illegal purpose or in connection with or in furtherance of any unlawful or illegal activity, (ii) in violation of any applicable law or regulation, or (iii) assign or transfer any Service(s) without the express written consent of Ionstream. Customer represents and warrants that it will not, and will not permit others to, engage in any act which materially interferes with or compromises the security or functionality of any Service(s), including without limitation attempting to probe or test the vulnerability of any system or network connected to or accessible by the Service(s). Customer further represents and warrants that no equipment owned, leased, maintained by or controlled by Customer or by any third party which is connected to or utilized the Service(s) with the consent of Customer will, to the knowledge of Customer: (a) interfere with or impair any Service(s) or any plant, services or facilities of any Indemnitees or of any third party, (b) unlawfully interfere with or impair the transmission of privacy of any data or communications transmitted over the Service(s) or over any plant, services or facilities of any Indemnitees or of any third party, or (c) create, cause or contribute to the creation or causing of a hazard to any Indemnitees or to any third party.

7.6 IONSTREAM DOES NOT MAKE AND HEREBY DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, EXPRESS, IMPLIED AND STATUTORY WARRANTIES THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE, INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IONSTREAM AND ITS REPRESENTATIVES DISCLAIM ANY AND ALL WARRANTIES NOT EXPRESSLY STATED IN SECTION 7.2 OF THIS MSA TO THE MAXIMUM EXTENT PERMITTED BY LAW. IONSTREAM MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING OPEN SOURCE SOFTWARE OR WITH REGARD TO ANY THIRD-PARTY PRODUCTS OR SERVICES WHICH IONSTREAM MAY RECOMMEND FOR CUSTOMER’S CONSIDERATION. TPS AGREEMENTS ARE INDEPENDENT AND SEPARATE FROM THE AGREEMENT, AND IONSTREAM IS NOT A PARTY TO AND IS NOT RESPONSIBLE FOR THE PERFORMANCE OF ANY TPS AGREEMENTS.

7.7 CLIENT ACKNOWLEDGES THAT THE SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS, AND THAT CLIENT WILL FOLLOW ANY REQUIREMENTS, SPECIFICATIONS, INSTRUCTIONS, CONDITIONS, OR PROCEDURES CONTAINED IN THE ORDER. SUBJECT TO ANY SPECIFIC TERMS OF THE ORDER, CLIENT AGREES THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY BE LIABLE TO CLIENT OR ANY THIRD PARTIES FOR ANY INABILITY TO USE THE SERVICES (WHETHER DUE TO DISRUPTION, CHANGES TO OR TERMINATION OF THE SERVICES OR OTHERWISE), ANY DELAYS, INACCURACIES, ERRORS OR OMISSIONS WITH RESPECT TO ANY COMMUNICATIONS OR TRANSMISSION OR DELIVERY OF ALL OR ANY PART THEREOF, OR ANY DAMAGE (DIRECT, INDIRECT, CONSEQUENTIAL OR OTHERWISE) ARISING FROM THE USE OF OR INABILITY TO USE THE SERVICES. IF COMPANY DETERMINES IN ITS REASONABLE BUSINESS JUDGMENT THAT CLIENT’S USE OF THE SERVICES DOES NOT CONFORM TO ITS POLICIES, COMPANY MAY SUSPEND THE SERVICES UNTIL COMPANY APPROVES OF CLIENT’S OPERATION.

7.8 CLIENT ACKNOWLEDGES THAT IONSTREAM RELIES ON THIRD PARTY UPSTREAM PROVIDERS SUCH AS THE DATA CENTER OPERATOR AND NETWORK OPERATOR TO PROVIDE THIS SERVICE AND THAT IONSTREAM HAS NO CONTROL OVER THEIR PERFORMANCE. CUSTOMER AGREES THAT A DATA CENTER OUTAGE OF ANY KIND OR A NETWORK OUTAGE THAT IS OUTSIDE OF IONSTREAMS OWNED NETWORK WITHIN THE DATA CENTER DOES NOT CONSTITUTE A BREACH AND DOWNTIME WILL SIMPLY BE CALCULATED UNDER THE SLA CREDITS FRAMEWORK.

7.9 ALL SERVICES ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS, AND CLIENT’S USE OF THE SERVICES IS SOLELY AT ITS OWN RISK. CLIENT ACKNOWLEDGES AND AGREES THAT COMPANY DOES NOT AND CANNOT CONTROL THE FLOW OF DATA OR POWER TO OR FROM COMPANY’S NETWORK AND/OR THE INTERNET OR POWER GRID, WHICH ARE PROVIDED OR CONTROLLED BY THIRD PARTIES, AND THAT ACTIONS OR INACTIONS OF THIRD PARTIES CAN IMPAIR OR DISRUPT COMPANY’S CONNECTIONS TO THE INTERNET OR POWER GRID (OR PORTIONS THEREOF) INCLUDING, WITHOUT LIMITATION, INTERRUPTIONS IN SERVICE CAUSED BY GOVERNMENT REGULATIONS OR ORDERS, SYSTEM CAPACITY LIMITATIONS OR LIMITATIONS IMPOSED BY, OR FAILURES OF, AN UNDERLYING COMMUNICATIONS CARRIER. COMPANY WILL ENDEAVOR TO TAKE ACTIONS IT DEEMS APPROPRIATE IN ITS SOLE DISCRETION TO REMEDY AND AVOID SUCH EVENTS. HOWEVER, COMPANY CANNOT AND DOES NOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR, AND COMPANY DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS. COMPANY HEREBY DISCLAIMS ALL RESPONSIBILITY FOR THE ACTS OR OMISSIONS BY COMPANY’S OTHER CUSTOMERS AND CLIENTS AND OTHER THIRD PARTIES.

8 Term & Termination

8.1. Term. This MSA is effective as of the effective date set forth in the first Customer Success Order between Customer and Ionstream and shall continue until terminated in accordance with its terms. Customer Success Orders for Recurring Services shall only be renewed if the parties enter into an agreement for a Renewal Term.

8.2. Termination for Convenience. For Recurring Services, unless otherwise stated in the Agreement, Customer may terminate all or part of any Customer Success Order for convenience at any time by giving Ionstream at least sixty (60) days advance written notice, subject to an early termination fee calculated in section 8.4.8.3.

8.3 Termination for Cause. (A) Either party may immediately terminate the MSA and/or the affected Customer Success Order(s) for cause on written notice if the other party materially breaches the Agreement and where the breach is remediable, does not remedy the breach within thirty (30) days of the non-breaching party’s written notice describing the breach in reasonable detail. (B)Ionstream may immediately terminate the Agreement and/or the applicable Customer Success Order(s) for breach on written notice if, following suspension of Customer’s Services for non-payment, payment of any invoiced undisputed amount remains overdue for a further ten (10) days, or in the case of failure to pay an Unpaid Balance resulting in a breach condition three or more times during any twelve (12) month period). All cap cost reduction fees referred to in section 8.5(C) shall be forfeited for a termination due to breach by the Customer. For the avoidance of doubt, the following circumstances shall not entitle Customer to any cap cost payment refund under any circumstances: (i) changes in market pricing of the NVIDIA GPUs in the service order or comparable hardware after the Order date; (ii) Customer’s financing, funding, capital markets, or business circumstances; (iii) the availability of alternative or superior hardware from any source; (iv) delivery delays not exceeding ninety (90) days beyond the Contracted Date (v) minor specification variances within agreed tolerances; (vi) general supply chain disruption not crossing the 90-day threshold in Section 8 A; and (vii) regulatory risk that was reasonably foreseeable at the time of execution.

Subject to applicable law, either party may terminate the MSA and any Customer Success Order(s) on twenty-four (24) hours prior written notice if the other party enters into compulsory or voluntary liquidation, or ceases for any reason to carry on business.

8.4. Delivery, Acceptance, and Fee Accrual. The Estimated Delivery Date for the Services is as set forth in the Customer Success Order. Ionstream shall make best efforts to deliver and make available for acceptance testing all GPU systems, with all CPU, storage, networking, and connectivity components, on or before the Estimated Delivery Date. Customer shall have five (5) days from delivery to conduct acceptance testing against mutually agreed acceptance criteria (the “Acceptance Criteria”). Customer understands and agrees that delays can occur and that ionstream is making a capital commitment and arranging multiple parties and contracts to deliver the services as a whole and that delays can occur in any of these relationships that can cause a delay to the project as a whole. There are no damages or penalties for delays of the project within 90 days of original projections. Customer will be notified of delays and if Ionstream has not commenced providing the Services by the date more than ninety (90) days after the later of (i) the go-live date for the Services as set out in the applicable Customer Success Order; and (ii) the date that is ninety (90) days after the Estimated Delivery Date, Customer may terminate the relevant Customer Success Order(s). If Ionstream has partially commenced providing the Services, charges shall accrue with respect to such partial delivery of Services, with charges as set out in the applicable Customer Success Order being prorated as applicable to reflect the partial delivery (e.g., where charges are set based on multiple GPUs being deployed, where only half of the scheduled GPUs have been delivered and deployed as of the go-live date for the Services, 50% of the charges for that scheduled GPU grouping shall accrue and be payable by Customer hereunder). As Ionstream commences performance of the remainder of the Services, the charges shall be adjusted on a pro rata basis to reflect the volume of Services then being performed.

8.5. Charges and Schedule.

(A) Customer Termination Charges. In the event that Customer terminates a Customer Success Order for convenience prior to the end of the term of a Customer Success Order (or in the event that the delivery of the Services is terminated by Ionstream as the result of an uncured default by Customer pursuant to this Agreement), Customer shall pay Ionstream a termination charge in a lump sum equal to a percentage of the total amount of Fees which would have been payable for such Service during the entire term for such Service as defined in the following Section 8.4(B) (less any Fees for such Service already paid to Ionstream). Customer acknowledges and agrees that (i) the injury caused to Ionstream by Customer’s termination of one or more Service(s) will be difficult or impossible of accurate estimation; (ii) both Customer and Ionstream intend that the termination charge provides for liquidated damages, rather than a penalty; and (iii) that the termination charge constitutes a reasonable pre- estimate of the probable loss or injury that will be caused to Ionstream by Customer’s termination of one or more Service(s). The foregoing obligations shall survive expiration or termination of the Agreement for any reason whatsoever. Cap cost reduction fees shall be forfeited in their entirety and not subject to this schedule except under section 8.5 C.

(B) Schedule and Amounts.

1 year Customer Success Order – 75% of the remaining billable amount;
2 year Customer Success Order – 75% of the first-year remaining amount and 50% of year 2 remaining amount;
3-4 year Customer Success Order – 75% of the first-year remaining amount and 50% of year 2 remaining amount and 40% of year 3-4 remaining amount;
5 year Customer Success Order – 75% of the first-year remaining amount and 50% of year 2 remaining amount and 40% of year 3-4 remaining amount and 30% of year 5 remaining amount.
The parties acknowledge that the termination charges set forth in Section 8 are a genuine estimate of the actual damages that Ionstream will suffer and are not a penalty.

(C) Termination Refunds. In the event Customer terminates this Agreement (including all Customer Success Order(s) then in effect) for cause under Section 8.2, Customer will be entitled to a refund of Cap Cost Reduction Fees for the terminated Services, prorated for the remainder of the term following termination. Customer recognizes and agrees that Ionstream may not have the cash on hand to immediately refund the entire amount due under this clause and agrees to work with ionstream to find a replacement client to cover the refund, take payments as cash is available which shall not exceed 6 months and or as a last resort if after 6 months from the uncured breach date – take the servers in amount up to the value as determined by gpu wholesalers as satisfaction of the debt. Ionstream agrees to make good faith efforts to raise the cash and or conduct equipment sales as quickly as possible to raise the cash. This section is not subject to the overall limitations cap in section 10 but in addition to.

8.6. Delayed Termination. If, following Customer’s notice of termination, Ionstream permits Customer to cancel or delay the scheduled termination date, Customer is obligated to re-notify Ionstream in writing at least ninety (90) days prior to any rescheduled termination date.

9 Confidential Information

Ionstream and Customer acknowledge that proprietary and confidential information (including without limitation trade secrets) (collectively “Confidential Information”) of each party may be disclosed to the other party throughout the term of this Agreement. Pursuant to the terms of the parties’ Mutual Non- Disclosure Agreement (“NDA”), and if a Non-Disclosure Agreement has not been executed between the parties, both parties agree that they have a duty to maintain the confidentiality of all matters related to the dealings between Customer and Ionstream. Each party agrees to not reverse engineer, decompile, disclose to any third party, or to use for any purpose not strictly required for such party’s performance hereunder, such Confidential Information except to the extent that such Confidential Information was: (i) made publicly available by the owner of the Confidential Information or lawfully disclosed by a non-party to this Agreement; (ii) lawfully obtained from any source other than the owner of the Confidential Information; (iii) independently developed by personnel of the receiving party to whom Confidential Information had not been previously disclosed and not based on or derived from such Confidential Information; or (iv) previously known to the receiving party without an obligation to keep it confidential. Anything to the contrary herein notwithstanding, Ionstream may disclose such information as necessary to perform the Services to Ionstream’s successors or assigns, subsidiaries, Affiliates, officers, directors, employees, agents, independent contractors, licensees, licensors and suppliers which have signed and are bound by a non- disclosure agreement with Ionstream which contains protections equal to or greater than the protections afforded in this agreement or, as applicable, in the NDA. The obligations set forth in this Section 9 shall survive the termination of this Agreement for any reason whatsoever; provided, however, that, with respect to Confidential Information which constitutes a trade secret, the obligations set forth in this Section 9 shall survive the termination of this Agreement for any reason whatsoever for so long as such Confidential Information constitutes a trade secret under applicable law.

10 Limitations on Damages

EXCEPT AS SET FORTH IN THIS PARAGRAPH, THE AGGREGATE LIABILITY OF EACH PARTYAND ITS SUCCESSORS OR ASSIGNS, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, INDEPENDENT CONTRACTORS, LICENSEES, LICENSORS, SUPPLIERS AND CUSTOMERS (THE “PROTECTED PARTIES”) FOR ANY LOSSES OR DAMAGE, WHETHER DIRECT OR INDIRECT, ARISING OUT OF OR IN CONNECTION WITH THE SERVICE(S), INCLUDING WITHOUT LIMITATION ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT OR STRICT LIABILITY, SHALL BE LIMITED TO: (i) WITH RESPECT TO THE APPLICABLE CUSTOMER SUCCESS ORDER, THE ACTUAL, DIRECT DAMAGES INCURRED BUT IN NO EVENT SHALL EXCEED THE FEES PAID BY CUSTOMER TO IONSTREAM DURING THE THREE (3) MONTHS PRECEDING THE MONTH IN WHICH LIABILITY AROSE FOR THE SERVICE(S) UNDER WHICH SUCH LIABILITY AROSE; “. IONSTREAM SHALL NOTBE LIABLE FOR ANY: LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COVER, OR EXEMPLARY DAMAGES OR FOR ANY CLAIMS AGAINST CUSTOMER BY ANY THIRD PARTY, EVEN IF IONSTREAM WAS ADVISED OF THE POSSIBILITY OF SAME. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS AGREEMENT OR ANY CUSTOMER SUCCESS ORDER WILL LIMIT OR EXCLUDE A PARTY’S LIABILITY WITH RESPECT TO THE APPLICABLE CUSTOMER SUCCESS ORDER ARISING FROM OR AS A RESULT OF: (i), WILLFUL MISCONDUCT, OR FRAUD; (ii) AMOUNTS AWARDED, PAID, OR PAYABLE TO THIRD PARTIES ARISING FROM EACH PARTY’S INDEMNIFICATION OBLIGATIONS AS SET OUT IN SECTION 11 (INDEMNIFICATION));OR (iii) TERMINATION LIABILITIES CALCULATED UNDER SECTIONS 8.2, 8.3 AND 8.5 OF THIS AGREEMENT. OTHER THAN FOR INDEMNIFICATION OBLIGATIONS, NO ACTION ARISING OUT OF THIS AGREEMENT, REGARDLESS OF FORM, MAY BE BROUGHT BY CUSTOMER AGAINST IONSTREAM MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE. UNDER NO CIRCUMSTANCES SHALL IONSTREAM BE LIABLE HEREUNDER FOR SPECIAL DAMAGES, CONSEQUENTIAL DAMAGES, GENERAL DAMAGES, INCIDENTAL DAMAGES, INDIRECT DAMAGES, OR EXEMPLARY OR PUNITIVE DAMAGES. NO ACTION ARISING OUT OF THIS AGREEMENT, REGARDLESS OF FORM, MAY BE BROUGHT BY CUSTOMER AGAINST IONSTREAM MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE. WITHOUT LIMITING THE FOREGOING:

10.1. UNLESS OTHERWISE EXPLICITLY STATED IN THE CUSTOMER SUCCESS ORDER, CUSTOMER ACKNOWLEDGES THAT IONSTREAM IS NOT RESPONSIBLE FOR CONTROLLING OR MONITORING ANY CUSTOMER DATA OR ANY OTHER CUSTOMER CONTENT, INFORMATION, DATA OR OTHER MATERIALS STORED ON, TRANSMITTED VIA, OR ACCESSIBLE THROUGH USE OF, THE SERVICE(S), AND IONSTREAM WILL HAVE NO LIABILITY TO CUSTOMER WHATSOEVER IN CONNECTION WITH SUCH CONTENT, INFORMATION, DATA OR OTHER MATERIALS (INCLUDING WITHOUT LIMITATION THE ACCURACY OR SUITABILITY THEREOF OR UNAUTHORIZED ACCESS OR DAMAGE TO, ALTERATION, THEFT, CORRUPTION DESTRUCTION OR LOSS OF, CUSTOMER’S DATA OR OTHER MATERIALS).

10.2. IONSTREAM WILL HAVE NO LIABILITY TO CUSTOMER WHATSOEVER IN CONNECTION WITH ANY HARM OR LOSS ARISING FROM OR IN CONNECTION WITH UNAUTHORIZED ACCESS TO OR USE OFTHE SERVICE(S) OR ANY CUSTOMER DATA.,

10.3. As an essential part of the Agreement, and subject to the limitations and exclusions contained in section 10, the liquidated damages payable under the SLA(s) shall be the credits stated in any applicable SLA(s) which are Customer’s sole and exclusive remedy for Ionstream’s failure to meet those guarantees for which credits are provided; and the parties agree that the credits are not a penalty, are fair and reasonable and represent a reasonable estimate of loss that may reasonably be anticipated from any breach. The maximum credit(s) for failures to meet any applicable SLA(s) for any calendar month shall not exceed 100% of the then-current monthly recurring Fee for the corresponding Services. Customer is not entitled to a credit if Customer is in breach of the Agreement at the time of the occurrence of the event giving rise to the credit, until such time as Customer has remedied the breach. No credit shall be due if the credit would not have accrued but for Customer’s unauthorized acts or omissions; and

10.4. This Section 10 shall survive expiration or termination of this Agreement for any reason whatsoever.

11 Indemnification

11.1. Indemnification by Ionstream. Subject to the limitations of liability in Section 10, Ionstream shall indemnify and hold harmless Customer, its officers, agents, employees, affiliates, subsidiaries, assigns and successors in interest from and pay any final judgments awarded against Customer, and pay Customer’s reasonable costs and attorneys’ fees resulting from any claims, liabilities, losses, suits, and damages asserted by a third party based on Ionstream’s alleged infringement of any patent, copyright, trademark, trade secret, or other intellectual property or proprietary rights of such third party arising under the laws of the jurisdiction in which the Services giving rise to the claim are provided , unless and except to the extent that such infringement is caused by (i) modification of the Services by anyone other than Ionstream, (ii) Ionstream’s use of Customer’s trademarks, Customer Data, or other materials supplied by Customer, (iii) use of any Services in connection or in combination with equipment, devices, or software not provided by Ionstream (but only to the extent that such Services alone would not have infringed); (iv) the use of any Services other than as permitted under this Agreement or in a manner for which it was not intended; or (v) Customer’s failure to apply updates, patches, or current releases to software provided by Ionstream (if Customer is responsible for the installation of such software and the claim would have been prevented by the use of such release or version). If Software becomes the subject of an infringement claim under this Section 11.1, or in the Ionstream’s opinion is likely to become the subject of such a claim, then Ionstream may, at its option and in its sole discretion, (A) replace or modify the Services to make them non-infringing or (B) procure the right to continue using the Services. If neither alternative is available on commercially reasonable terms, Ionstream shall have the right to cease the use of the Software and terminate the applicable Service(s) and refund a pro rata portion of any fees paid for such Service(s). The foregoing obligations will be Customer’s sole and exclusive remedy for any claims of infringement.

11.2. Indemnification by Customer. Customer shall indemnify and hold harmless Ionstream, its officers, agents, employees, affiliates, subsidiaries, assigns and successors in interest from, defend Ionstream against, pay any final judgments awarded against Ionstream, and pay Ionstream’s reasonable costs and attorneys’ fees resulting from any claims, liabilities, losses, suits, and damages asserted by a third party based on: (i) allegations that the data or information, procedures, or other resources: (a) provided by Customer and in the form provided by Customer (or anyone authorized to act on Customer’s behalf); or (b) processed, utilized, modified, or produced by or on behalf of Customer as part of its use of the Services hereunder infringe or misappropriate any intellectual property rights, rights of privacy, or other proprietary rights of a third party (in each case except to the extent the infringement arises out of services, products, processes, or any other resource provided by or procure from, directly or indirectly, Ionstream or its affiliates; or (ii) Customer’s improper or misuse of the Services (including without limitation, in violation of applicable laws, rules or regulations or any portion of this Agreement); or (iii) the conduct of any business in connection with use of the Services, other than to the extent Ionstream bears any responsibility for such claims under Section 11.1 .

11.3. Indemnification Procedures. If any third party makes a claim covered by Section 11.1 or Section 11.2 against an indemnitee with respect to which such indemnitee intends to seek indemnification under this Section, such indemnitee shall give notice of such claim to the indemnifying party, including a brief description of the amount and basis therefor, if known. Upon giving such notice, the indemnifying party shall be obligated to defend such indemnitee against such claim and shall be entitled to assume control of the defense of the claim with counsel chosen by the indemnifying party, reasonably satisfactory to the indemnitee. The indemnitee shall cooperate fully with and assist the indemnifying party in its defense against such claim in all reasonable respects. The indemnifying party shall keep the indemnitee always apprised as to the status of the defense. Notwithstanding the foregoing, the indemnitee shall have the right to employ its own separate counsel in any such action, but the fees and expenses of such counsel shall be at the expense of the indemnitee. Neither the indemnifying party nor any indemnitee shall be liable for any settlement of action or claim effected without its consent. Notwithstanding the foregoing, the indemnitee shall retain, assume, or reassume sole control over all expenses relating to every aspect of the defense that it believes is not the subject of the indemnification provided for in this Section. Until both (i) the indemnitee receives notice from indemnifying party that it will defend, and (ii) the indemnifying party assumes such defense, the indemnitee may, at any time after ten (10) days from the date notice of claim is given to the indemnifying party by the indemnitee, resist or otherwise defend the claim or, after consultation with and consent of the indemnifying party, settle or otherwise compromise or pay the claim. The indemnitee shall keep the indemnifying party fully apprised at all times as to the status of the defense.

12 Notices

Customer routine communications to Ionstream regarding the Services should be sent to Customer’s account team using the customer portal. To give a notice regarding termination of the Agreement for breach, indemnification, or other legal matter, Customer shall send it by electronic mail and overnight postal service to 2626 Spring Cypress Road, Spring Texas 77388, Attn: Legal and to [email protected]. Ionstream’s routine communications regarding the Services and legal notices shall be posted on the customer portal or sent by email or post to the individual(s) Customer designates as contact(s) on Customer’s account. Notices are deemed received as of the time posted or delivered, or if that time does not fall within a Business Day, as of the beginning of the first Business Day following the time posted or delivered. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices shall be given in the English language.

13 Publicity, Use of Marks

Neither party may issue a press release or otherwise publicly disclose the existence or terms of this Agreement without the other party’s prior written consent. Each party may include the other party’s name and logo in its standard customer or vendor list in accordance with the other party’s brand guidelines. Neither party may disclose any information regarding the other party’s customers or end users without that other party’s prior written consent.

14 Assignment / Subcontractors

This Agreement shall accrue to the benefit of and be binding upon the parties hereto and any successor or permitted assignee or transferee. Except as expressly provided, neither party may, or shall have the power to, assign this Agreement or delegate its obligations hereunder without the prior written consent of the other, except that either party may assign its rights and obligations under this Agreement without the approval of the other party: (i) to an entity which acquires all or substantially all of the assets of the assigning party;(ii) to any Affiliate, in which event the assignor shall remain liable as a guarantor of the assignee/Affiliate’s performance of such party’s obligations hereunder; (iii) to a successor in a merger or acquisition; or (iv) for financing purposes to one or more Financing Parties, including entering into a Financing Document or as collateral to any institutional lender. Ionstream may use its Affiliates or subcontractors to perform all or any part of the Services, but Ionstream remains responsible under the Agreement for work performed by its Affiliates and subcontractors to the same extent as if Ionstream performed the Services itself.

15 Export

Each Party represents and warrants that neither it nor any of its subsidiaries, directors, officers or, to the knowledge of such Party, employees, agents or affiliates: (i) is a Prohibited Person; (ii) has been, in the past five (5) years, in violation of applicable Anti-Corruption Laws; (iii) has been, since April 24, 2019, or is currently, in violation of applicable Sanctions or Export Controls; or (iv) has been since April 24, 2019, or is currently, engaged in any dealings or transactions with or involving any Prohibited Person, or in, with or involving any Sanctioned Jurisdiction. Each Party shall, in connection with this Agreement and any Customer Success Order, comply with applicable Anti-Corruption Laws, Export Controls and Sanctions.The parties agree to adhere to all applicable export laws and regulations of the United States and that absent any required prior authorization from the Office of Export Licensing, U.S. Department of Commerce, they will not knowingly export or re-export (as defined in Part 779 of the Export Administration Regulations) directly or indirectly, through their Affiliates, licensees, or subsidiaries, any of the Information (or any product, process, or service resulting directly therefrom) they receive under this or any ancillary agreements, to Country Groups D1, E1, E2, or Iran, Syria, Sudan or any other country to the extent restricted by the U.S. Law or governmental order. Neither customer, nor any of its users, employees, or businesses under its control (i) is a person whose property or interest in property is blocked or subject to blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)) as amended, (ii) engages in any dealings or transactions prohibited by Section 2 of such executive order, or is otherwise associated with any such person in any manner violate of Section 2, or (iii) is a person on the list of Specially Designated Nationals and Blocked Persons or subject to the limitations or prohibitions under any other U.S. Department of Treasury’s Office of Foreign Assets Control regulation or executive order. Customers, its users, employees or businesses under Customer’s direct control are in compliance, in all material respects, with the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, as amended.

16 Miscellaneous

16.1. Dependencies and Adjustments. Ionstream’s failure to timely or otherwise perform its responsibilities under this Agreement and/or any Customer Success Order, including, without limitation, failure to meet any deadlines or timelines, will be excused, and Ionstream will not be in breach of this Agreement or any Customer Success Order, if Ionstream’s non-performance is caused by: (i) the wrongful or tortious actions of Customer or any employee, contractor, agent, or consultant of Customer (“Customer Personnel”) performing obligations on behalf of Customer;(ii) the failure of Customer or any Customer Personnel to perform Customer’s obligations under this Agreement and/or any Customer Success Order; or (iii) Ionstream acting in accordance with an instruction provided by Customer. The parties agree that in event any deadline or timeline is impacted by any of the foregoing, that the parties will mutually determine a revised deadline or timeline for Ionstream to perform the Services. The parties further agree that in the event of any such delay or non-performance as described in this Section, the original payment obligations set forth in the applicable Customer Success Order will remain unchanged regardless of any adjustment to the any deadline or timeline adjustment agreed to by the parties. Customer expressly acknowledges and agrees that proper provision of the Service(s) is dependent upon the provision to Ionstream by Customer of timely and accurate information regarding (i) Customer’s needs and expectations regarding the Service(s), and (ii) all operational, technological, or other data which is reasonably required for the provision of the Service(s) (collectively “Information”). Customer shall make commercially reasonable efforts to provide the Information to Ionstream in a timely manner and the Information shall be accurate in all material respects and Ionstream will not be held liable for any failures to perform under this Agreement to the extent caused by Customer’s failure to provide any Information.

16.2. Relationship of the Parties. Ionstream is an independent contractor of Customer and neither Ionstream nor its subsidiaries, officers, directors, employees, agents, independent contractors, licensees, licensors, or suppliers (collectively “Ionstream Staff” solely for purposes of this Section) is or shall be deemed to be an agent, employee, franchisee, joint venturer, or legal representative of Customer by virtue of its performance hereunder. Ionstream and Customer hereby agree that, unless otherwise agreed between the parties in writing, Customer will not be required to provide or furnish any training to Ionstream Staff to enable Ionstream to perform the Services. Ionstream shall not be required to devote the full time of any Ionstream Staff to the performance of the Services. Ionstream reserves the sole right to determine the assignment of the Ionstream Staff to perform the services. Ionstream may perform any obligation pursuant to this Agreement using agents and subcontractors.

16.3. Non-Solicitation. During the term of this Agreement and for one (1) year after termination, neither party shall directly solicit for employment any then-current employee of the other party with whom it had contact in connection with the Services. General job postings, responses to employee-initiated inquiries, and hiring through third-party recruiters without specific direction are not prohibited. Ionstream shall not, during the term and for one (1) year thereafter, directly solicit or target any downstream customer of Customer that was identified by or became known to Ionstream through the performance of Services under a Customer Success Order. In the event of any breach of this Section by a party, that party shall pay to the other party the Employee Expenses (as defined below). Customer and Ionstream acknowledge and agree that (i) the injury caused to the other party by the party’s breach will be difficult or impossible of accurate estimation; (ii) both Customer and Ionstream intend that the Employee Expenses provide for damages, rather than a penalty; and (iii) the Employee Expenses constitute a reasonable pre-estimate of the probable loss or injury that will be caused to either party by breach of this Section. For purposes of this Section, “Employee Expenses” shall be an amount equal to thirty-five percent (35%) of all compensation paid to the party’s employee hired in violation of this Section (including the monetary value of any bonuses and incentives but excluding any amounts paid by the previous employing party) during the twelve (12) months following such hiring.

16.4. Regulatory. If the FCC or any governmental authority of competent jurisdiction determines that any provision of this Agreement violates any applicable rules, policies, or regulations, both parties shall make commercially reasonable efforts to promptly bring this Agreement into compliance and shall endeavor in those efforts to preserve for both parties the economic benefits as reflected in this Agreement to the maximum extent possible. Ionstream reserves the right to disclose information relating to Customer’s Customer Success Order if required to do so by law or regulation, or any subpoena, demand or order of any court of competent jurisdiction or authorized governmental agency. Ionstream may release only that portion of information relating to Customer’s Customer Success Order required by the court or agency.

16.5. Insurance. Each party will keep in full force and effect during the term of this Agreement: (i) comprehensive general liability insurance in an amount not less than $2 million per occurrence for bodily injury and property damage and (ii) workers’ compensation insurance in an amount not less than that required by applicable law. Ionstream will keep in full force and effect during the term of this Agreement (a) professional liability and errors and omission liability insurance covering acts, errors, omissions arising out of insured’s negligence in an amount not less than $2 million per occurrence and (b) commercial crime coverage in an amount not less than $1 million per occurrence. Before installation of any Equipment in a Ionstream data center, Customer will deliver to Ionstream certificates of insurance showing the minimum levels of insurance set forth above. Customer will bear all risk of loss with respect to all Equipment.

16.6. Force Majeure. Neither Party will be liable or responsible for any delay or failure in performance of any part of this Agreement or the applicable Customer Success Order that is caused by any Force Majeure Event affecting the performance of the applicable Affected Party. In the event a Force Majeure Event interrupts the Services, the applicable credits provided under the SLA will apply.

The Affected Party must use commercially reasonable efforts to mitigate and minimize any resulting delay. The Affected Party must provide written notice to the other Party within a reasonable period (under the circumstances) of learning of a Force Majeure Event, stating the nature and cause of the event, the anticipated duration, the measures proposed or taken to minimize the delay, and the project timetable for implementing such measures. The Affected Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.

If such Force Majeure Event Continue for more than ninety (90) days, either Party may cancel unperformed Services and affected Customer Success Order(s) upon prior written notice.

16.7. Severability. If any provision of the Agreement is held invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall remain in full force and effect.

16.8. Superiority. This Agreement shall not be supplemented or modified by any course of dealing or trade usage. Addition to or variance from the terms and conditions of the Agreement by Customer, including without limitation any additional or varying terms contained in Customer’s preprinted forms, correspondence or other documents transmitted to Ionstream, shall be of no effect, unless otherwise expressly provided in this Agreement. If any conflict of terms set forth in this agreement and its schedules, exhibits, Customer Success Orders and attachments arises, the terms of any Customer Success Orders, as applicable, shall supersede such conflicting or inconsistent terms and conditions in this Agreement, the applicable schedule, exhibit, or attachment to the extent necessary to resolve such conflict; notwithstanding the foregoing, certain exhibits to this Agreement may specify that the terms and conditions in such exhibits supersede any conflicting or inconsistent terms and conditions in this Agreement or the applicable Service Order to the extent necessary to resolve such conflict.

16.9. Construction, Venue, Jurisdiction. This Agreement and any claim, action, suit, proceeding or dispute arising out of or in connection with this Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive laws of the State of Delaware.

(A) Arbitration. All disputes or claims shall be settled through a single session binding arbitration to be carried out in association with JAMS (https://www.jamsadr.com) via a randomly assigned arbitrator from them and the cost of arbitration shall be split equally between Ionstream and Customer. This shall be conducted in Delaware and may occur via teleconference if customer chooses not to travel. The award shall be enforced through Delaware courts and domesticated as a judgement in customers’ home state if customer does not settle the award amount at the closing of arbitration.

16.10. Waiver. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement. A waiver or consent given on one occasion is effective only in that instance and will not be construed as a bar to or waiver of any other right on any other occasion.

16.11. Survival. Sections of this Master Agreement, including those relating to payments, confidentiality, indemnification, and limitation of liability shall survive any expiration or termination of this Agreement.

16.12. Entirety. This Agreement and its schedules constitute the complete and entire statement of all terms, conditions, and representations of the agreement between Ionstream and Customer with respect to its subject matter and supersede all prior writings or understandings.

16.13. Modification; Amendment. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each Party; no other act, document, usage, or custom shall be deemed to amend or modify this Agreement.

S1 Schedule 1 — Defined Terms

Capitalized but undefined terms have the meanings set forth in Schedule 1, in the main body of this MSA, or in the General Terms and Conditions.

Affected Party: A Party who is delayed or fails to perform its obligations under this Agreement because of a Force Majeure Event.
Affiliate: Any entity that: (i) directly or indirectly controls a party; (ii) is controlled by a party; or (iii) is under common control with the party, but only for so long as such control exists. As used in this definition “control” means control of more than 50% interest in an entity.
Agreement: Collectively, the MSA, General Terms and Conditions, and any applicable Customer Success Order, Service Descriptions, or other addenda which govern the provision of Services.
Anti-Corruption Laws: Any and all laws, rules and regulations concerning or relating to the prevention or prohibition of bribery or corruption, including the U.S. Foreign Corrupt Practices Act of 1977, as amended.
Auto Renewal Term: The automatic renewal period following the Initial Term expiry for consecutive rolling 90-day terms.
Business Day: Monday through Friday, excluding United States public holidays.
Cap Cost Reduction Fees: Fees charged at the time of execution of contract that reduce the amount of capital being amortized under the services agreement – thereby having the effect of reducing the hourly fees charged for the servers. These are non-refundable except under certain conditions defined in the contract.
Customer’s Environment: An information technology system (hardware, software, and/or other information technology components) which is the subject of the Services or to which the Services relate.
Customer Data: Any content, data, services, equipment, customer information, software supplied by Customer, and any trademarks and domain names used by Customer.
Customer IP: Customer’s pre-existing Intellectual Property.
Deliverables: The tangible or intangible materials which are prepared for Customer’s use in the course of Ionstream performing the Services and that are specifically identified and described in a Customer Success Order as Deliverables.
Export Controls: Any and all laws, rules and regulations concerning or relating to the export of any goods, services or technology, including but not limited to the Export Administration Regulations administered by the Bureau of Industry and Security of the U.S. Department of Commerce, the International Traffic in Arms Regulations administered by the Directorate of Defense Trade Controls of the U.S. Department of State and Export Control Regulation (EU) 2021/821, as implemented and enforced in any EU member state.
Fees: The fees payable under the applicable Customer Success Order.
General Terms and Conditions: Ionstream’s General Terms and Conditions
Initial Term: The initial term of the applicable Customer Success Order.
Financing Documents: All loan agreements, credit agreements, reimbursement agreements, notes, indentures, bonds, security agreements, pledge agreements, mortgages, guarantee documents, intercreditor agreements, subscription agreements, equity contribution agreements and other agreements, and instruments relating to the financing (or refinancing) of Customer or its Affiliates.
Financing Parties: The banks, lenders, noteholders, and/or financial institutions (or an agent or trustee thereof) that are a party to the Financing Documents, including the successors in interest to such parties.
Force Majeure Event: Any acts of God, civil or military authority, or the public enemy; war; riots; accidents; fires; explosions; power surges; earthquakes; floods; droughts; unusually severe weather; natural or man-made disasters or accidents; epidemics; pandemics; public health emergencies of international concern (as defined by the World Health Organization); strikes or labor disputes (excluding Ionstream subcontractors); governmental edicts and any state of emergency, terrorism, or threats of terrorism; national or regional emergency; changes in applicable Export Controls; or other similar causes beyond either Party’s control and which by its nature could not have been foreseen, was unavoidable, and was not caused by the delayed or non-performing Party.
Intellectual Property: Patents, copyrights, trademarks, trade secrets, and any other proprietary and/or intellectual property rights.
Local Withholding Taxes: Withholding (or similar) taxes imposed on income that may be attributable to Ionstream in connection with its provision of the Services that Customer is legally required to withhold and remit to the applicable governmental or taxing authority.
Managed Service: Customer’s Environment provided by Ionstream for Customer’s use at a Ionstream data center.
Ionstream Configuration Requirements: Those specifications identified by Ionstream as required to perform the Services, such as a required reference architecture or software version, as described in Customer’s Customer Success Order or Service Descriptions.
One Time Services: Services which are provided on a one-off basis.
Open Source Software: Open source software including Linux, OpenStack, and software licensed under the Apache, GPL, MIT, or other open source licenses.
Prohibited Person: Any person or entity that is: (a) a Sanctioned Person; (b) identified on any Export Controls-related list of designated or proscribed persons or entities; or (c) owned or controlled by any person(s) described in (b) above, as a result of which such owned or controlled person(s) are subject to the same prohibitions or restrictions as the person described in (b) above.
Sanctioned Jurisdiction: Any country or territory that is the subject of comprehensive Sanctions broadly prohibiting dealings in, with or involving such country or territory (as of the date hereof, Cuba Iran, North Korea, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic and the Crimea region of Ukraine.
Sanctioned Person: Any person or entity that is: (a) identified on any Sanctions-related list of designated persons, including the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Asset Controls of the U.S. Department of the Treasury, the Consolidated List of Persons, Groups and Entities Subject to EU Financial Sanctions maintained by the European Commission, the UK Sanctions List maintained by the Office of Financial Sanctions Implementation of the United Kingdom or any other list of persons subject to Sanctions maintained by any Sanctions Authority from time to time; (b) domiciled, organized or resident in, or the government of, any Sanctioned Jurisdiction; (c) 50% or more owned or controlled, in the aggregate, or controlled by, directly or indirectly, one or more persons described in the foregoing clauses (a) or (b); or (d) otherwise the target of Sanctions.
Sanctions: All economic or financial sanctions imposed, administered or enforced by any Sanctions Authority.
Sanctions Authority: (a) the U.S. government (including the Office of Foreign Assets Control of the U.S. Department of the Treasury and the U.S. Department of State); the United Kingdom (including His Majesty’s Treasury); (c) the European Union or any European Union member state; and (d) the United Nations Security Council.
Service Descriptions / Service Schedule(s): Additional terms and conditions incorporated in a Customer Success Order which contain product-specific obligations.
Recurring Services: Services which are provided on an on-going, recurring basis.
Renewal Term: A fixed term extension of the Customer Success Order term.
Representatives: A party’s respective service providers, officers, directors, employees, contractors, Affiliates, suppliers, and agents.
Sensitive Data: Any: (i) personally identifiable information or information that is referred to as personal data (including sensitive personal data); PII (or other like term) under applicable data protection or privacy law and includes information that by itself or combined with other information can be used to identify a person; (ii) financial records; and (iii) other sensitive or regulated information.
Customer Success Order: The document describing the Services Customer is purchasing, including any online order, process, statement of work, or tool through which Customer requests or provisions Services.
Services: The Ionstream services identified in a specific Customer Success Order.
SLA: A specific provision, if any, providing a specified credit remedy for Ionstream’s identified failure to deliver or provide the Services to the identified standard.
Tax: Any value added, goods and services, sales, use, property, excise, and like taxes, import duties and/or applicable levies arising out of the provision of the Services.
Test Services: Those Services designed by Ionstream as “Test”, “Beta”, “early access”, or with like designation in a Customer Success Order.
Third Party Fee Increase: The direct or indirect increase of fees by a third-party vendor charged to Ionstream for Customer’s use of Third-Party Services, Third Party Software, or both, which may occur at any time.
Third Party Services: Services provided by a third party and used in connection with the Services.
Third Party Software: Software provided by a third party and used in connection with the Services.
TPS Agreements: Agreements for products and services provided by third parties, which are entered into directly between Customer and such third party.
Unsupported Services: Services designated by Ionstream as “commercially reasonable efforts”, “reasonable efforts”, “non-standard”, “reasonable endeavors”, “unsupported”, or with like designation in a Customer Success Order.