Partner Subscriber Agreement

PLEASE READ THIS PARTNER SUBSCRIBER AGREEMENT CAREFULLY. BY SUBMITTING A STRATEGIC PARTNER AGREEMENT, YOU ARE ACCEPTING THE TERMS AND CONDITIONS OF AND AGREEING TO BE BOUND BY THIS AGREEMENT.

Clone Systems, Inc. (“Clone Systems”) and the Partner Subscriber (“Partner Subscriber”) set forth on the Strategic Partner Agreement enter into this Partner Subscriber Agreement, to define the terms of their relationship set forth in this Agreement (the “Strategic Partnership”). This Agreement sets forth the terms under which Clone Systems agrees to provide services to end-users (“PS End-Users”) designated by Partner Subscriber on Partner Subscriber’s purchase orders (“PO’s”) submitted to Clone Systems pursuant to this Agreement. The term of the Strategic Partnership (the “Subscription Term”) will begin on the date that Partner Subscriber signs the Strategic Partner Agreement (the “Partnership Start Date”), and will last for thirty-six (36) months.

1. (a) Partner Subscriber agrees to retain Clone Systems, and Clone Systems agrees to provide to each PS End-User named in a PO provided to Clone Systems by Partner Subscriber, at mutually convenient times and places, the Services stated in a PO between that PS End-User and Partner Subscriber (the “Services”) received and accepted by Clone Systems from Partner Subscriber during the Subscription Term. Clone Systems shall be deemed to have accepted a PO when Clone Systems begins to render Services to the PS End-User named in such PO. Clone Systems agrees to give Partner Subscriber and each PS End-User the full benefit of Clone Systems’ knowledge, experience, judgment and expertise in rendering technical advice to Partner Subscriber and each PS End User on the matters and subjects requested in the applicable PO. All Services shall be performed in a professional and workmanlike manner. For purposes of this Agreement, Services are defined as such: advice, consultation, provisioning and configuration of equipment, and other technical assistance and services as indicated in written form on any applicable PO. Partner Subscriber represents and warrants to Clone Systems that it has bound each PS End-User named in a binding and enforceable PO which includes the terms listed on Appendix “D” to this Agreement (the “Clone Terms”), and which names Clone Systems as a third party beneficiary. Appendix “B” to this Agreement (as it may be amended from time to time) sets forth Clone Systems’ pricing to Partner Subscriber for the Services to be provided by Clone Systems to a PS End User, and any applicable discounts.

The Subscription Term will automatically renew for one (1) or more additional Subscription Terms of twelve (12) months each, unless Partner Subscriber shall have given Clone Systems written notice of its intention not to renew at least ninety (90) days prior to the end of the initial Subscription Term, or of any renewal Subscription Term. The Subscription Term may be terminated only as provided in this Partner Subscriber Agreement, and termination of a PO, or of any agreement between Partner Subscriber and a PS End-User, will not terminate or affect the Partner Subscriber Agreement, unless the Partner Subscriber Agreement is terminated as provided in this Agreement. Partner Subscriber represents and warrants to Clone Systems that each PO provided to Clone Systems is true and correct, and binding and enforceable by Clone Systems against the PS End-User named in each such PO.

(b) The effective date of the term during which Clone Systems will provide Services to a PS End User (the “PS End User Term”) shall begin on the date (the “PS End-User Start Date”) when Clone Systems receives a PO from Partner Subscriber. The Start Date of such PS End-User Term is the Date all Services are delivered to PS End-User as defined in Appendix “C” to this Agreement. For instances where partial Services are delivered prior to the Start Date, Partner Subscriber will receive interim invoices which will be prorated for the Services delivered. A PS End-User Term shall begin upon delivery of all Services. A PS End-User Term shall last for thirty-six (36) months from such PS End-User Start Date, or at the billing frequency agreed to on Appendix A for the Services to be provided. The Completion of Setup is specific to the service that is subscribed to and is defined in the table in Appendix “C” to this Agreement.

Each PS End-User Term will automatically renew for one (1) or more additional PS End-User Terms of twelve (12) months each, unless Partner Subscriber shall have given Clone Systems written notice of Partner Subscriber’s or a PS End-User’s intention not to renew at least sixty (60) days prior to the end of the initial PS End-User Term, or of any PS End-User Term; provided, however, that if the Subscription Term terminates, all PS End-User Terms will also terminate upon termination of the Subscription Term. Partner Subscriber agrees (and shall cause each PS End-User to agree) that Clone Systems is a third party beneficiary of each PO pursuant to this Partner Subscriber Agreement.

Any such PS End-User to whom Clone Systems has begun to provide services pursuant to a PO shall be deemed a third-party beneficiary of this Partner Subscriber Agreement, and are entitled to the rights and benefits hereunder and may rely upon and directly enforce the provisions hereof as if they were parties hereto. Should any PS End-User or potential PS End-User request a copy of this Partner Subscriber Agreement, Partner Subscriber shall be entitled to provide the PS End-User or potential PS End-User an executed copy of this Partner Subscriber Agreement.

2. Each PO shall become a part of this Agreement, after it has been signed by Partner Subscriber and Clone Systems. All terms and conditions, including but not limited to, the term of the Services and the compensation for Clone Systems for providing such Services, shall be determined by each PO. A written PO will be provided prior to any project engagement.

3. As compensation for Services delivered by Clone Systems, Partner Subscriber agrees to pay Clone Systems all fees set forth on Appendix “B” for all Services provided by Clone Systems to any PS End User as defined in Appendix “C” pursuant to any PO (whether or not a PS End-User pays Partner Subscriber for such Services). The hours of service on any given day will be those which meet the reasonable needs of the PS End-User named in such PO for the particular task to be performed pursuant to the applicable PO.

4. Partner Subscriber agrees to reimburse Clone Systems for expenses incurred while carrying out Clone Systems’ activities as authorized by Partner Subscriber, PS End-User or the delegate of any of them, provided that Clone Systems substantiates these expenses and submits a statement to Partner Subscriber and PS End-User of all such expenses. Any items obtained with these expenses become the property of Partner Subscriber and PS End-User. Examples of such expenses and project materials may include: miscellaneous supplies, hardware, software, repeaters, books, etc.

5. Clone Systems will bill Partner Subscriber in advance of rendering Services pursuant to this Strategic Partnership or pursuant to any PO submitted to Clone Systems by Partner Subscriber, at the billing frequency agreed to on Appendix A for the Services to be provided, and all such invoices are due no later than the date that Services will be performed (the “Due Date”). Clone Systems will strive to provide to Partner Subscriber all invoices for Services to be performed on a date (the “Invoice Date”) thirty (30) business days before the date Clone Systems will begin to perform Services. Other expenses incurred hereunder will be invoiced to Partner Subscriber monthly (once per month). Every invoice shall include the breakdown and distribution of charges by name of individual items and expenses. Partner Subscriber is required to pay each invoice in full before the Due Date indicated on each invoice. By way of example, payment for Services to be performed in January is due no later than January 1, and Clone Systems will strive to provide Partner Subscriber an invoice for such payment by the Invoice Date (December 1); however, whether or not Partner Subscriber has received an invoice for Services to be performed in January by the Invoice Date (December 1), payment for such Services to be performed in January is due no later than the Due Date (January 1). If Partner Subscriber fails to pay any amount by the applicable Due Date, Clone Systems may charge interest on the unpaid and past due balance at the lesser of six one-hundredths of one percent (0.06%) per day or the maximum legal rate (the “Rate”). In addition, Partner Subscriber agrees to pay any and all of Clone Systems’ costs of collection, including any reasonable attorney’s fees, incurred in connection with any breach or threatened breach of this Agreement or exercise of any such remedies. Clone Systems reserves the right, without any liability to it and without prejudice to any other legal remedy, to withhold, suspend or stop the performance of Services if Partner Subscriber is delinquent in making payments hereunder. Partner Subscriber’s obligation to Clone Systems is independent of any PS End-User’s obligation to Partner Subscriber; Partner Subscriber remains obligated to pay Clone Systems all amounts due under this Agreement or under any PO, regardless whether a PS End-User has paid Partner Subscriber.

6. Unless PS End-User or Partner Subscriber is exempt pursuant to a valid exemption certificate (reasonably satisfactory to Clone Systems), Partner Subscriber agrees to pay all applicable sales and other taxes that result from any transaction covered by the project, whether assessed to Partner Subscriber, PS End-User or Clone Systems. Taxes based on Clone Systems’ net income or operations will not be collected from Partner Subscriber.

7. The Parties mutually agree that Clone Systems is an independent contractor, and not a partner, agent or employee of Partner Subscriber or any PS End-User for any purpose whatsoever. Clone Systems controls the manner and means of performing the Services and is responsible for managing and compensating the Clone Systems personnel performing the Services.

8. Any benefits provided by Partner Subscriber or PS End-User to their employees, including but not limited to medical, life, accident or disability insurance, pensions, unemployment or workmen’s compensation or profit sharing plans, shall not be available to Clone Systems personnel. No withholding of Federal or State income taxes, social security, or related contributions shall be made from payments distributed to Clone Systems.

9. Clone Systems is a company focused on I.T. Security and is not obligated to divulge to Partner Subscriber or PS End-User any information for which Clone Systems has previously undertaken an obligation of confidence for the benefit of any party other than Partner Subscriber or PS End-User. Clone Systems shall not knowingly disclose to Partner Subscriber or PS End-User any information, knowledge, or data for which it does not have the full and unrestricted right to disclose without incurring legal liability to others. Clone Systems is the sole owner of information collected from performance of the Services, except that PS End-User is the sole owner of information collected from performance of the Services with respect to PS End-User’s networks and data. Clone Systems will not knowingly sell, share, or rent Partner Subscriber information to others unless disclosed to Partner Subscriber in writing, and will not knowingly sell, share, or rent PS End-User information to others, or disclose any confidential or proprietary information of PS End-User, without PS End-User’s prior written consent. Clone Systems may disclose Partner Subscriber’s or PS End-User’s information when it believes in good faith that the law requires it, or to the extent that such disclosure is necessary to protect the rights or property of Clone Systems, provided that Clone Systems shall not knowingly make any such disclosure with respect to PS End-User’s information without reasonable advance notice to PS End-User, so as to give PS End-User time to seek a protective order from a court if it so desires, except in an emergency requiring immediate disclosure, in which case Clone Systems shall supply as much notice as practicable to PS End-User. Clone Systems will use reasonable efforts to maintain the privacy of information collected from Partner Subscriber or PS End-User. Partner Subscriber agrees not to disclose any confidential or proprietary information of Clone Systems, and Partner Subscriber agrees to cause PS End-User not to disclose any confidential or proprietary information of Clone Systems.

10. This Agreement, and the Partner Subscriber Periods of all Clone Systems’ Partner Subscriber Details within any relevant PO, may not be terminated by Partner Subscriber or PS End-User during the applicable Partner Subscriber Periods (including any automatic renewal periods, as stated in each applicable PO), and Partner Subscriber is responsible to pay to Clone Systems all payments described in Appendix B, and in all applicable POs, notwithstanding any termination or notice of Partner Subscriber’s or PS End-User’s intention not to renew. No termination charge will apply if Partner Subscriber elects not to renew the Strategic Partnership, if all invoices are paid on-time according to the payment terms specified in Appendix B and in the Service Charges section of the relevant PO, and written notice of Partner Subscriber’s intention not to renew is timely given at the time provided under Sections One (1) of this Agreement. Upon non-renewal or termination by the PS End-User, (i) PS End-User shall immediately cease use of all Services or the Strategic Partnership, and shall promptly return to Clone Systems any property of Clone Systems that is in its possession or control, and (ii) all rights granted under this Partner Subscriber Agreement or any PO, or otherwise by Clone Systems to the PS End-User, will immediately cease. Upon non-renewal or termination by the Partner Subscriber, (i) Partner Subscriber shall immediately cease use of all Services or the Strategic Partnership, and shall promptly return to Clone Systems any property of Clone Systems that is in its possession or control, and (ii) all rights granted under this Partner Subscriber Agreement or any PO to Partner Subscriber, or otherwise by Clone Systems, will immediately cease. Upon non-renewal or termination by the Partner Subscriber, (i) the PS End-User’s rights under this Agreement and any POs shall continue for thirty (30) days while Clone and the PS End-User negotiate and execute a direct agreement between themselves as referenced in Section 1(b) hereof. If, after thirty days, Clone and the PS End-User have not executed a new, direct agreement, (i) PS End-User shall immediately cease use of all Services or the Strategic Partnership, and shall promptly return to Clone Systems any property of Clone Systems that is in its possession or control, and (ii) all rights granted under this Partner Subscriber Agreement or any PO to PS End-User, or otherwise by Clone Systems, will immediately cease.

11. Partner Subscriber agrees (and shall cause each PS End-User to agree) that Clone Systems shall have the right to act as a consultant for, or be employed in any other capacity by any other parties concerning any subject matter.

12. Nothing in this Agreement and nothing in Clone Systems’ statements to Partner Subscriber can or shall be construed as a promise or guarantee about the successful outcome of the Services to be provided under this Agreement, the Partner Subscriber Agreement, or any PO. CLONE SYSTEMS DOES NOT MAKE ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES RENDERED BY ITS PERSONNEL OR THE RESULTS OBTAINED FROM THEIR WORK, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL CLONE SYSTEMS BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES, OR FOR ACTS OF NEGLIGENCE WHICH ARE NOT INTENTIONAL OR RECKLESS IN NATURE, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

13. Except for indemnification claims which are governed and limited exclusively by Paragraph 16 of the Partner Subscriber Agreement, Clone Systems, and Partner Subscriber agree (and shall cause PS End-User to agree) that any liability hereunder for damages, regardless of the form of action, shall not exceed the total amount paid for Services under the POs applicable to such Services.

14. Partner Subscriber recognizes (and shall cause each PS End-User to agree) that Clone Systems shall not be liable for any failure or delay caused by events beyond Clone Systems’ control, including, without limitation, Partner Subscriber’s or a PS End-User’s failure to furnish necessary information, sabotage, failure or delays in transportation or communication, failures or substitutions of equipment, labor disputes, accidents, shortages of labor, fuel, raw materials or equipment, or technical failures.

15. Both parties agree (and Partner Subscriber shall cause each PS End-User to agree) not to, directly or indirectly, solicit, hire or otherwise engage in any manner whatsoever, the employees of any other party during the term of this Agreement, any renewal thereof and for a period of three (3) years following the termination of the parties’ relationship. In the event of a violation of this Section, the parties hereto understand and agree that actual damages will be difficult to determine and, therefore agree that the party violating this provision shall pay to the other party the sum of one (1) year’s direct salary of each employee solicited and/or hired as liquidated damages, not as a penalty.

Clone Systems agrees that it will not knowingly, directly or indirectly, solicit or accept orders from any PS End-User during the Subscription Term for the performance of Services, or for any business similar to the business transacted by Partner Subscriber with such PS End-User. If any PS End-User of Partner Subscriber described in this Section 15 so requests Services from Clone Systems at any time during the Subscription Period, Clone Systems shall cause such request to be referred immediately to Partner Subscriber.

16. Partner Subscriber shall indemnify and hold Clone Systems, its officers, directors, employees and agents harmless from and against any claims, demands, loss, damage or expense (and Partner Subscriber shall cause each PS End-User to indemnify and hold Clone Systems, its officers, directors, employees and agents harmless from and against any claims, demands, loss, damage or expense (i) related to bodily injury or death of any person or damage to property resulting from the negligence or willful misconduct of Partner Subscriber or any PS End-User, or its officers and employees, (ii) related to claims by any of Partner Subscriber’s employees or any PS End-User’s employees for injuries or damages under the workmen’s compensation or similar acts or (iii) incurred by Clone Systems based on any claim that any materials provided by Partner Subscriber or any PS End-User under the Agreement or use thereof by Clone Systems in accordance with this Agreement infringes any copyright, trade secret or other proprietary right of any third party. Clone Systems shall indemnify and hold Partner Subscriber, and each PS End-User, and their officers, directors, employees and agents harmless from and against any claims, demands, loss, damage or expense (i) related to bodily injury or death of any person or damage to property resulting from the negligence or willful misconduct of Clone Systems, or its officers and employees, (ii) related to claims by any of Clone Systems employees for injuries or damages under the workmen’s compensation or similar acts or (iii) incurred by Partner Subscriber or PS End-User based on any claim that any materials, products, or Services provided by Partner Subscriber or Clone Systems under the Agreement or any PO or use thereof by Partner Subscriber or PS End-User in accordance with this Agreement infringes any copyright, trade secret or other proprietary right of any third party. Clone Systems shall procure and maintain at its own expense in full force and effect at all times during the Subscription Period comprehensive public liability and professional liability and errors and omissions insurance policies, with respect to Clone Systems’ performance of Services under this Agreement, with combined single limits per occurrence of no less than five million Dollars ($5,000,000) per incident, and five million Dollars ($5,000,000) in the aggregate. Evidence of such insurance shall be available upon request.

17. This Partner Subscriber Agreement and each PO pursuant to which Clone Systems performs Services for Partner Subscriber hereunder contain the entire and only Agreement between the parties with respect to the subject matter hereof and thereof. Clone Systems may amend this Partner Subscriber Agreement from time to time, which amendments shall be effective immediately upon posting at www.clone-systems.com/legal. However, no such amendment shall be effective against any Partner Subscriber or PS End-User with respect to any previously accepted PO, which shall continue to be governed by the Agreement as in force as of the effective date of such PO. Clone Systems will provide commercially reasonable electronic notice to Partner Subscriber of material amendments (and Partner Subscriber agrees to provide commercially reasonable electronic notice to all of its PS End-Users of material amendments). If any provision of this Agreement is held invalid, void, illegal or unenforceable by any court of final jurisdiction, it is the intent of the parties that all other provisions of this Agreement be construed to remain fully valid, enforceable, and binding on the parties to the greatest extent permissible by law, and that such court modify any provisions concerning scope, activity or subject, so as to make them enforceable to the maximum extent permissible; in the event of any such equitable modification by a court, the remaining provisions of this Agreement shall remain fully valid, enforceable and binding on the parties.

18. This Partner Subscriber Agreement shall inure to the benefit of, and be binding upon, Clone Systems and Partner Subscriber, and their successors and assigns (including as the result of a sale of the equity or substantially all of the assets of Clone Systems). Partner Subscriber may not assign this Agreement, any PO, or any rights under them, in whole or in part (including an assignment by operation of law in connection with a sale of assets of Partner Subscriber, or a change of control of Partner Subscriber) without the prior written consent of Clone Systems, which consent may be granted or withheld in Clone Systems’ unilateral discretion.

19. This Partner Subscriber Agreement and each PO hereunder shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without regard for the principle of conflicts of law.

Clone Systems and the Partner Subscriber agree (and shall cause each PS End-User to agree) that any action or proceeding in connection with this Agreement, or with any PO, shall be commenced exclusively in state or federal court in Philadelphia County in the Commonwealth of Pennsylvania. Clone Systems and Partner Subscriber waive (and shall cause each PS End-User to waive) any objections to the laying of venue in Philadelphia County, Pennsylvania, and waive all rights to trial by jury in any matter in connection with this Agreement or the performance of Services by Clone Systems.

Except with respect to disputes and claims under Sections Fifteen (15), Sixteen (16), Nineteen (19) or Twenty (20) of this Agreement (which the parties hereto may pursue in any court of competent jurisdiction in Philadelphia County, Pennsylvania), each party hereto agrees (and Partner Subscriber shall cause each PS End-User to agree) that arbitration, pursuant to the procedures set forth in the Rules of the Judicial Arbitration and Mediation Service (“JAMS”) (as currently in effect or such later version as may then be in effect) shall be the sole and exclusive method for resolving any claim, controversy or dispute (“Claim”) arising out of or relating to the rights and obligations of the parties to each other under this Agreement, whether such claim arose or the facts on which such Claim is based occurred prior to or after the execution and delivery of this Agreement. The parties hereto agree that one arbitrator shall be appointed pursuant to the Rules to conduct any such arbitration, with JAMS to provide the parties hereto with lists for the selection of arbitrators composed entirely (if possible) of arbitrators who are members of a Panel of Distinguished Neutrals who have prior experience in the arbitration of disputes arising out of the purchase of privately held companies. In the event that the parties are unable to agree upon an arbitrator in accordance with the Rules, and the lists submitted to the parties for striking the names of unacceptable arbitrators does not result in common selection, JAMS shall appoint an arbitrator with the same qualifications described herein. All meetings of the parties and all hearings with respect to any such arbitration shall take place in Philadelphia, Pennsylvania, or such other location to which the parties and the arbitrator may agree. Each party to the arbitration shall bear its own costs and expenses (including, without limitation, all attorneys’ fees and expenses, except to the extent otherwise required by applicable law); provided, however, that a party prevailing substantially in such arbitration shall be entitled to an award by the arbitrator of his, her or its costs and expenses (including but not limited to attorneys’ fees and expenses). All costs and expenses of the arbitration proceeding (such as filing fees, the arbitrator’s fees, hearing expenses, etc.) shall be borne equally by the parties hereto; provided, however, that a party prevailing substantially in such arbitration shall be entitled to an award by the arbitrator of his, her or its arbitration costs. The parties agree that the judgment, award or other determination of any arbitration under the Rules shall be final, conclusive and binding on all of the parties hereto. Nothing in this Section Nineteen (19) shall prohibit any party hereto from instituting litigation to enforce any final judgment, award or determination of the arbitration. Each party hereto hereby irrevocably submits to the jurisdiction of any state or federal court of competent jurisdiction sitting in Philadelphia, Pennsylvania, and agrees that such court shall be the exclusive forum for the enforcement of any such final judgment, award or determination of the arbitration. Each party hereto irrevocably consents to service of process by registered mail or personal service and waives any objection on the grounds of personal jurisdiction, venue or inconvenience of the forum. Each party hereto further agrees that each other party hereto may initiate litigation in any court of competent jurisdiction to execute any judicial judgment enforcing or not enforcing any award, judgment or determination of the arbitration.

Notwithstanding the foregoing, prior to any party hereto instituting any arbitration proceeding hereunder to resolve any Claim, such party first shall submit the Claim to a mediation proceeding between the parties hereto which shall be governed by the prevailing JAMS mediation procedures and shall be conducted in Philadelphia, Pennsylvania. If the parties hereto have not agreed in writing to a resolution of the Claim pursuant to the mediation within forty-five (45) days after the commencement thereof of if any party refuses to participate in the mediation process, then the Claim may be submitted to arbitration under the preceding paragraph. Each party hereto shall bear its own costs and expenses incurred in connection with the mediation, and all costs and expenses of the mediation proceeding shall be borne equally by the parties hereto.

Clone Systems and Partner Subscriber agrees that if Clone Systems, Partner Subscriber or any PS End-User breaches Sections Fifteen (15), Sixteen (16), Nineteen (19) or Twenty (20) of this Agreement, the non-breaching parties will suffer irreparable harm for which it would have no adequate remedy at law, and therefore Clone Systems and Partner Subscriber agree (and will cause each PS End-User to agree) that Clone Systems, the Partner Subscriber and each PS End-User shall be entitled to a preliminary or permanent injunction or temporary restraining order to prevent the continuation of such harm following any alleged breach.

20. All intellectual property rights and other proprietary rights in and to the Services and deliverables, information, know-how, and processes developed by Clone Systems, or anyone acting on Clone Systems’ behalf, arising from the Services performed hereunder, or developed outside the Services Schedules shall be the sole and exclusive property of Clone Systems and shall not be claimed to be a work-for-hire. Clone Systems grants Partner Subscriber a non-exclusive right to use, reproduce, and display any deliverables as necessary solely in the conduct of Partner Subscriber’s own business (and Clone Systems grants Partner Subscriber a non-exclusive right to allow its PS End-Users the right to use, reproduce, and display any deliverables as necessary solely in the conduct of such PS End-Users’ own business). Such right of use shall not extend to any affiliates of Partner Subscriber, or affiliates of any PS End-User, or any other person; provided, however, that Partner Subscriber may (upon prior written notice to Clone Systems) permit Partner Subscriber’s strategic partners to use such deliverables (but neither Partner Subscriber nor any such strategic partner of Partner Subscriber shall have any rights in such deliverables, or intellectual property of Clone Systems). Partner Subscriber shall cause each such strategic partner of Partner Subscriber to cease use of such deliverables upon the request of Clone Systems. This license is perpetual provided Partner Subscriber is not otherwise in breach of this Agreement, and shall terminate upon termination, expiration or nonrenewal of this Agreement.

21. Clone Systems warrants and represents that the products and Services provided to PS End-User (“Deliverables”) shall not, at the time of delivery (and, if applicable, installation and configuration by Clone Systems) do not knowingly contain or deliver malicious code designed to permit unauthorized parties to access, modify, delete, damage, deactivate or disable any PS End-User system, network, device, application, or data, or provide unauthorized access to any PS End-User system, network, device, application, or data (“ Malicious Code”); (ii) that it uses and shall continue to use throughout the period of its performance of Services commercially reasonable best efforts utilizing generally accepted industry tools and practices such that the Deliverables do not knowingly contain any Malicious Code; and (iii) that the Services shall not knowingly introduce Malicious Code into any of Customer’s systems, networks, devices, applications, or data. Clone Systems shall take action immediately to investigate, identify and remove such Malicious Code from the Deliverables, and to assist PS End-User, at no charge to PS End-User, in the investigation, identification and removal of such Malicious Code from PS End-User systems, networks, devices, applications or data.

22. Partner Subscriber understands and acknowledges that Clone Systems’ business depends, in part, upon its ability to engage and retain customers. Partner Subscriber further understands and agrees (and shall cause each PS End-User to agree) that use of its name by Clone Systems to assist in Clone Systems’ marketing efforts is beneficial to Clone Systems. As further consideration for Clone Systems’ performance of Services hereunder, Partner Subscriber authorizes and permits Clone Systems to use Partner Subscriber’s name in Clone Systems’ advertising and marketing efforts (and Partner Subscriber shall cause each PS End-User to authorize and permit Clone Systems to use such PS End-User’s name in Clone Systems’ advertising and marketing efforts, provided Clone Systems receives prior written approval from PS End-User). Clone Systems agrees (and shall cause each PS End-User to agree) to restrict such usage to identification of Partner Subscriber as a Clone Systems customer and to make no representations concerning the quality, quantity or type of Services performed by Clone Systems for Partner Subscriber without Partner Subscriber’s express written permission. Clone Systems is an I.T. Security company, and will take extra caution to ensure that no business-critical information is released.

23. Capitalized terms used in this Agreement and not defined in it shall have the meaning set forth in the applicable PO. Capitalized terms used in a PO, and not defined in that PO, shall have the meaning set forth in this Agreement. If any provision in a PO conflicts with the terms of this Partner Subscriber Agreement, the terms of this Partner Subscriber Agreement will control. At any time and from time to time after the date of execution of this Agreement or any PO, each party shall, without further consideration, take such actions and execute and deliver such documents as the other party may reasonably request to carry out the transactions contemplated by this Agreement and the POs. As used in this Agreement, Partner Subscriber and Clone Systems may each be referred to as a “Party”, and collectively as the “Parties”.

24. All notices, requests, waivers, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given, made and received when hand delivered against receipt, or on the day after it is sent by United States certified or registered mail, postage prepaid, return receipt requested, by nationally recognized overnight courier service, or by email, to the Notice Contacts in the applicable PO.

APPENDIX A – PURCHASE ORDERSPS END-USER INFORMATION WHICH MUST BE INCLUDED IN ALL PURCHASE ORDERS BETWEEN
PARTNER SUBSCRIBER AND CLONE SYSTEMS FOR ACCEPTANCE BY CLONE SYSTEMS

CONTACT INFORMATION
End User Name:End User Address:
End User Representative:
End User Telephone Number:End User Email:
Partner Representative:End User Code: XXXX
ONE-TIME SUBSCRIPTION / ONE-TIME SETUP
PRODUCTSERVICE DESCRIPTIONTOTAL
RECURRING MONTHLY SUBSCRIPTION
PRODUCTSERVICE DESCRIPTIONTOTAL MONTHLY
PAYMENT SUMMARY INCLUDING DISCOUNTS
OVERVIEWDISCOUNTTOTAL
ONE-TIME SUBSCRIPTION / ONE-TIME SETUP%USD 0.00
RECURRING STRATEGIC PARTNERSHIPBILLING FREQUENCY%USD 0.00
MonthlyQuarterlySemi-AnnualAnnual
NOTE: All Available Discounts are reflected in the Payment Summary above and will be invoiced according to the selected Billing Frequency

APPENDIX B – PARTNER PRICING

Please see specific pricing in applicable Partner Catalog of Services for Clone Systems’ pricing to Partner Subscriber for Services to be provided by Clone Systems to a PS End User.

APPENDIX C – COMPLETION OF SETUP

COMPLETION OF SETUP
SERVICE SUBSCRIPTIONCOMPLETION OF SETUP
Intrusion Prevention Services (IPS)The date that the IPS goes inline on the PS End-User network.
Intrusion Detection Services (IDS)The date that the IDS is configured as a tap on the PS End-User network.
Managed Firewall and NextGen Firewall (UTM)The date that the Clone Systems Security Engineers have confirmed Admin access to the security infrastructure and conducted a transition meeting with the PS End-User or their designate.
Advanced Endpoint Threat Protection (AETP)The date that the Advanced Endpoint Threat Protection is configured and protecting an endpoint on the PS End-User network.
Log ManagementThe date that the PS End-User first device forwards logs to the Log Collector.
Security Information and Event Management (SIEM)The date that the PS End-User first device forwards logs to the Log Collector.
Managed Penetration TestingThe Effective Date.
On Demand ScanningThe Effective Date.
PCI Compliance ScanningThe Effective Date.
Vulnerability AssessmentThe Effective Date.
Secure Private CloudThe date that the Secure Private Cloud is provisioned and access is provided to the PS End-User.

APPENDIX D – PS END-USER GUIDELINESRECOMMENDATIONS WHICH SHOULD BE CONSIDERED IN ALL AGREEMENTS BETWEEN PARTNER SUBSCRIBER AND PS END-USERSEach PS End-User agrees:

1. PS End-User shall not disclose any confidential or proprietary information of Clone Systems.

2. Clone Systems shall have the right to act as a consultant for, or be employed in any other capacity by any other parties concerning any subject matter.

3. Except for indemnification claims which are governed and limited exclusively by Paragraph 16 of the Partner Subscriber Agreement, all liability between and among Clone Systems, Partner Subscriber and any PS End-User under the Partner Subscriber Agreement for damages, regardless of the form of action, shall not exceed the total amount paid to Clone Systems for Services under the End-User POs applicable to such Services.

4. Clone Systems shall not be liable for any failure or delay caused by events beyond Clone Systems’ control, including, without limitation, Partner Subscriber’s or any PS End-User’s failure to furnish necessary information, sabotage, failure or delays in transportation or communication, failures or substitutions of equipment, labor disputes, accidents, shortages of labor, fuel, raw materials or equipment, or technical failures.

5. Clone Systems is a third party beneficiary of each PO.

6. Clone Systems, one the one hand, and Partner Subscriber and each PS End-User, on the other hand, shall not, directly or indirectly, solicit, hire or otherwise engage in any manner whatsoever, the employees of any other party during the term of this Agreement, any renewal thereof and for a period of three (3) years following the termination of the parties’ relationship. In the event of a violation of this Section, the parties hereto understand and agree that actual damages will be difficult to determine and, therefore agree that the party violating this provision shall pay to the other party the sum of one (1) year’s direct salary of each employee solicited and/or hired as liquidated damages, not as a penalty.

7. PS End-User shall indemnify and hold Clone Systems, its officers, directors, employees and agents harmless from and against any claims, demands, loss, damage or expense (i) related to bodily injury or death of any person or damage to property resulting from the negligence or willful misconduct of PS End-User, or its officers and employees, (ii) related to claims by any of PS End-User’s employees for injuries or damages under the workmen’s compensation or similar acts or (iii) incurred by Clone Systems based on any claim that any materials provided by PS End-User under the Agreement or use thereof by Clone Systems in accordance with this Agreement infringes any copyright, trade secret or other proprietary right of any third party.

8. Clone Systems, Partner Subscriber and PS End-User agree that any action or proceeding in connection with this Agreement, or with any PO or PO, shall be commenced exclusively in state or federal court in Philadelphia County in the Commonwealth of Pennsylvania, and waive any objections to the laying of venue in Philadelphia County, Pennsylvania and all rights to trial by jury in any matter in connection with this Agreement or the performance of Services by Clone Systems.

9. Except with respect to disputes and claims under Sections Six (6), Seven (7), Eight (8), Nine (9) and Ten (10) of this Appendix “D” to the Partner Subscriber Agreement (which the parties hereto may pursue in any court of competent jurisdiction in Philadelphia County, Pennsylvania), PS End-User agrees that arbitration, pursuant to the procedures set forth in the Rules of the Judicial Arbitration and Mediation Service (“JAMS”) (as currently in effect or such later version as may then be in effect) shall be the sole and exclusive method for resolving any claim, controversy or dispute (“Claim”) arising out of or relating to the rights and obligations of the parties under this Agreement to each other, whether such claim arose or the facts on which such Claim is based occurred prior to or after the execution and delivery of this Agreement. The parties hereto agree that one arbitrator shall be appointed pursuant to the Rules to conduct any such arbitration, with JAMS to provide the parties hereto with lists for the selection of arbitrators composed entirely (if possible) of arbitrators who are members of a Panel of Distinguished Neutrals who have prior experience in the arbitration of disputes arising out of the purchase of privately held companies. In the event that the parties are unable to agree upon an arbitrator in accordance with the Rules, and the lists submitted to the parties for striking the names of unacceptable arbitrators does not result in common selection, JAMS shall appoint an arbitrator with the same qualifications described herein. All meetings of the parties and all hearings with respect to any such arbitration shall take place in Philadelphia, Pennsylvania, or such other location to which the parties and the arbitrator may agree. Each party to the arbitration shall bear its own costs and expenses (including, without limitation, all attorneys’ fees and expenses, except to the extent otherwise required by applicable law); provided, however, that a party prevailing substantially in such arbitration shall be entitled to an award by the arbitrator of his, her or its costs and expenses (including but not limited to attorneys’ fees and expenses). All costs and expenses of the arbitration proceeding (such as filing fees, the arbitrator’s fees, hearing expenses, etc.) shall be borne equally by the parties hereto; provided, however, that a party prevailing substantially in such arbitration shall be entitled to an award by the arbitrator of his, her or its arbitration costs. The parties agree that the judgment, award or other determination of any arbitration under the Rules shall be final, conclusive and binding on all of the parties hereto. Nothing in this Agreement shall prohibit any party hereto from instituting litigation to enforce any final judgment, award or determination of the arbitration. Each party hereto hereby irrevocably submits to the jurisdiction of any state or federal court of competent jurisdiction sitting in Philadelphia, Pennsylvania, and agrees that such court shall be the exclusive forum for the enforcement of any such final judgment, award or determination of the arbitration. Each party hereto irrevocably consents to service of process by registered mail or personal service and waives any objection on the grounds of personal jurisdiction, venue or inconvenience of the forum. Each party hereto further agrees that each other party hereto may initiate litigation in any court of competent jurisdiction to execute any judicial judgment enforcing or not enforcing any award, judgment or determination of the arbitration.

10. Notwithstanding the foregoing, prior to any party hereto instituting any arbitration proceeding hereunder to resolve any Claim, such party first shall submit the Claim to a mediation proceeding between the parties hereto which shall be governed by the prevailing JAMS mediation procedures and shall be conducted in Philadelphia, Pennsylvania. If the parties hereto have not agreed in writing to a resolution of the Claim pursuant to the mediation within forty-five (45) days after the commencement thereof of if any party refuses to participate in the mediation process, then the Claim may be submitted to arbitration under paragraph (a) above. Each party hereto shall bear its own costs and expenses incurred in connection with the mediation, and all costs and expenses of the mediation proceeding shall be borne equally by the parties hereto.

11. Clone Systems, Partner Subscriber and PS End-User agree that if Clone Systems, Partner Subscriber or PS End-User breaches Sections Six (6), Seven (7), Eight (8), Nine (9), Ten (10) or Twelve (12) of this Appendix “D” to the Partner Subscriber Agreement, the non-breaching parties will suffer irreparable harm for which it would have no adequate remedy at law, and therefore Clone Systems, Partner Subscriber and PS End-User agree that the non-breaching parties shall be entitled to a preliminary or permanent injunction or temporary restraining order to prevent the continuation of such harm following any alleged breach.

12. All intellectual property rights and other proprietary rights in and to the Services and deliverables, information, know-how, and processes developed by Clone Systems, or anyone acting on Clone Systems’ behalf, arising from the Services performed hereunder, or developed outside the Services Schedules shall be the sole and exclusive property of Clone Systems and shall not be claimed to be a work-for-hire. Clone Systems grants PS End-User a non-exclusive right to use, reproduce, and display any deliverables as necessary solely in the conduct of PS End-User’s own business. Such right of use shall not extend to any affiliates of PS End-User; provided, however, that PS End-User shall not have any rights in such deliverables, or intellectual property of Clone Systems. PS End-User agrees to cease use of such deliverables upon the request of Clone Systems. This license is perpetual provided PS End-User is not otherwise in breach of this Agreement, and shall terminate upon termination, expiration or nonrenewal of the Partner Subscriber Agreement.

13. PS End-User understands and acknowledges that Clone Systems’ business depends, in part, upon its ability to engage and retain customers. PS End-User further understands and agrees that use of its name by Clone Systems to assist in Clone Systems’ marketing efforts is beneficial to Clone Systems. As further consideration for Clone Systems’ performance of Services hereunder, PS End-User authorizes and permits Clone Systems to use PS End-User’s name in Clone Systems’ advertising and marketing efforts.