Welcome to Jupiter Intelligence! Jupiter develops and provides climate risk data (“Jupiter Data”) through its cloud-based software platform (the “Platform Services”), helping companies to understand and plan for the impact of climate change on their businesses, assets, portfolios and supply chains. Jupiter Data pertains to individual physical locations identified by a single latitude/longitude (each, a “Location”) and consists of analytics developed by Jupiter concerning specified climate perils. Jupiter Data and the Platform Services are referred to below, collectively, as the “Data Service.”

Customer wishes to use the Data Service, pursuant to the terms and conditions of this Online Service Agreement (this “Agreement”).  In consideration of the foregoing, the parties hereby agree as follows: 

1. Services. 

‍        1.1 Customer Orders. Customer will execute a written order (each, a “Customer Order”) containing the specific terms and conditions relating to Customer’s use of the Data Service.  Each Customer Order will be governed by this Agreement automatically. 
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        1.2 Data Service.

                (a) Provision of Service. Jupiter will provide the Data Service in accordance with the terms of this Agreement and the applicable Customer Order. Customer will use the Data Service only in accordance with the terms of this Agreement.  Customer will ensure that Customer’s account information is accurate and complete and will be updated by Customer during the term of the Agreement as needed to maintain accuracy and completeness.  

                (b) Platform Services.  Jupiter will provide the Platform Services in accordance with its documentation (including all reasonable written instructions provided by Jupiter, the “Documentation”). Additionally, Jupiter will provide the service levels and support in connection with Customer’s use of the Platform Services pursuant to the Service Level Addendum and Support Terms set forth in Exhibit A below. 

                (c) Authorized Use. Customer will give access to the Data Service only to its employees and independent contractors who are working in furtherance of the licensed uses described in Section 2.1 (Grants) (“Authorized Users”).  Customer will be able to identify each Authorized User given access to the Data Service and will provide such information to Jupiter upon Jupiter’s reasonable request. Customer will ensure that Authorized Users do not share credentials and acknowledges that apparent sharing of credentials may result in individual accounts losing access to the Platform Services.  Customer will be solely responsible for all use of the Data Service under its account, including the acts and omissions of any Authorized Users.  Customer will protect its account against any unauthorized access and will notify Jupiter immediately if Customer becomes aware of any unauthorized use, disclosure or other compromise of Customer’s account. 

2. Licenses.  

      2.1 Grants.

            (a) Overview.  Below are the licenses to Jupiter Data provided to Customer under this Agreement and the applicable Customer Order.  The Jupiter Data licensed to Customer under this Section 2.1 is referred to as the “Licensed Data.”  The Licensed Data relates specifically to the Locations that Customer is allowed to access through the Platform Services (the “Licensed Locations”).  The number of Licensed Locations is listed in the Customer Order.

Customer is granted three types of licenses under each Customer Order: (1) a license allowing Customer to use Licensed Data internally (the “Permitted Internal Use License”); (2) a disclosure license allowing Customer to disclose certain Licensed Data (the “Permitted Disclosure License”); and (3) a license to create Customer’s own data sets based on the Licensed Data (the “Derived Data License”).    

Each license is subject to the limitations stated in the applicable Customer Order (the “Limitations”). As such, each license grant must be read in conjunction with the Limitations. The Limitations in the Customer Order will reference two forms of Jupiter Data: “Output,” which means, collectively, the data points and risk scores (both individual and aggregate) obtained through the Platform Services relating to a specified Location; and “Visualizations,” which means, collectively, the graphical representations of Output obtained through the Platform Services.  

In addition to the Limitations, each license below is conditioned on Customer’s continued compliance with its obligations under Section 3 (Payment) and Section 5 (Restrictions).

              (b) Permitted Internal Use License.  Subject to the terms of this Section 2.1, Jupiter hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable license to access Licensed Data through the Platform Services and to use the Licensed Data on a perpetual basis solely for Customer’s own internal business purposes including analysis, modeling and planning; provided that, such access and use is limited to the Licensed Locations and may be limited to the number of Authorized Users, the specified business unit or division of Customer or other conditions set forth in the Customer Order.  

               (c) Permitted Disclosure License.  Subject to the terms of this Section 2.2, Jupiter hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, perpetual license to disclose: (i) Output, provided that the cumulative Output disclosed by Customer does not exceed 10% of the Output provided to Customer under the applicable Customer Order; and (ii) Visualizations.

               (d) Derived Data License. Subject to the terms of this Section 2.1, Jupiter hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, perpetual license to the use Licensed Data to create Derived Data and to use and disclose the Derived Data as determined by Customer.  “Derived Data” means data created by combining Licensed Data with other non-Jupiter data to create new data sets where any Output is not separable or discernable from the new data set.

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        2.2 Jupiter Trademark License. Subject to the terms and conditions of this Agreement and the applicable Customer Order, Jupiter hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, perpetual license to use Jupiter’s trademarks and service marks (each, a “Jupiter Mark”) solely as needed to perform any attribution requirements set forth in the applicable Customer Order. Where the Jupiter Marks used consist of logos or graphics, such use will be in accordance with those trademark guidelines provided by Jupiter to Customer.  All use of the Jupiter Marks will inure to the benefit of Jupiter.

        2.3 Notification of Non-Compliance.  In the event Customer becomes aware of any non-compliance with the licensing terms set forth in Section 2.1 (Grants) or Section 2.2 (Trademark License), then Customer will promptly notify Jupiter and the parties will work together to address the non-compliance, including, if applicable, negotiation of additional Customer Orders to address such non-compliant activities. 

        2.4 Professional Services. Jupiter will provide any mutually agreed Professional Services in accordance with the terms of this Agreement and the applicable SOW. Unless otherwise expressly stated in the applicable SOW, all data provided to Customer under any SOW will be deemed “Licensed Data” for all purposes of this Agreement. All Professional Services will be deemed accepted by Customer on delivery unless otherwise agreed in the applicable SOW. Any changes to the terms of a mutually agreed SOW must be agreed in writing by both parties.

3. Payment.  

        3.1 Fees and Payment Terms. Customer will pay the fees further described in each Customer Order or SOW as applicable (the “Fees”).  All Fees are non-refundable and are payable net thirty days from the applicable invoice date.  

        3.2 Interest and Collection. Jupiter will notify Customer in the event Customer fails to pay any amount due in accordance with the terms of this Section 3.  If any undisputed amount due to Jupiter is not paid within fourteen days of such notice, then, until such amounts are paid in full, Jupiter may charge interest on any unpaid amount due at the rate of one percent per month, or at the maximum rate permitted by applicable law, whichever is lower, from the date such payment was due until the date it is paid. In the event Jupiter pursues collection of any overdue Fees payable hereunder, Customer will reimburse all reasonable third-party costs and fees incurred by Jupiter in connection with those collection activities.

        3.3 Taxes.  The Fees do not include any local, state, federal, withholding, VAT or other indirect taxes, levies or duties of any nature.  Customer is responsible for paying any such taxes, excluding taxes based on Jupiter’s net income, without regard to the transactions contemplated by this Agreement.   

4. Data Protection

        4.1 Definitions.  “Confidential Information” means information provided to the receiving party (“Receiving Party”) that is designated by the disclosing party (“Disclosing Party”) as “confidential” or “proprietary” or that a reasonable person would understand to be confidential given the nature of the information and the circumstances of the disclosure. Customer’s Confidential Information includes any non-Jupiter-provided data input into the Platform Services (collectively, the “Customer Data”). Jupiter’s Confidential Information includes all Jupiter Data except to the extent Customer has been given express permission to disclose the applicable Jupiter Data.  “Confidential Information” does not include information that: (a) is or becomes generally known to the public through no fault of the Receiving Party; (b) is in the Receiving Party’s possession prior to receipt from the Disclosing Party; (c) is acquired by the Receiving Party from a third party without breach of a confidentiality obligation; (d) is independently developed by Receiving Party without reference to the Disclosing Party’s Confidential Information; or (e) is approved in writing for disclosure by the Disclosing Party.  

      4.2 Confidentiality Obligations. Receiving Party will use and disclose Confidential Information solely as contemplated by this Agreement. Receiving Party will disclose Confidential Information only on a need-to-know basis and only to its employees, contractors, advisors or Authorized Users who are bound by obligations of confidentiality at least as strict as those contained in this Section.  Receiving Party will use reasonable care to protect Disclosing Party’s Confidential Information and to prevent unauthorized disclosure of Confidential Information. Confidential Information is and will remain the exclusive property of the Disclosing Party.  Subject to Section 2.1 (Grants), Receiving Party will, upon written request, destroy all copies of the Disclosing Party’s Confidential Information that are in its possession or control other than Confidential Information that the Receiving Party has a legal obligation to maintain or those copies maintained in system back-ups in the ordinary course of business. 

     4.3 Mandated Disclosures. In the event that Receiving Party is required by applicable law to make any disclosure of any of the Confidential Information of Disclosing Party, Receiving Party will, to the extent allowed by law, first give written notice of such requirement to Disclosing Party to allow Disclosing Party a reasonable opportunity to protect its interests in the Confidential Information.  In such cases, Receiving Party will provide full cooperation and assistance to Disclosing Party in seeking to obtain such protection, at Disclosing Party’s expense.  

      4.4 Security. Each party will maintain reasonable and appropriate administrative, technical, organizational and physical security measures to protect the other party’s data (Customer Data and Jupiter Data, respectively) against unauthorized access, disclosure and loss.  Each party will regularly monitor compliance with its security measures and will ensure that anyone given access to the other party’s data will use such data only as authorized by this Agreement and will not share such data or otherwise violate the terms of this Agreement.  Each party will maintain reasonable and appropriate security incident response policies and procedures for responding to any actual or reasonably suspected unauthorized access, disclosure or loss of the other party’s data (each, a “Data Security Incident”). Each party agrees to notify the other party without undue delay (no more than forty-eight hours) following discovery of any Data Security Incident and will take all necessary actions to prevent, contain and mitigate the impact of the Data Security Incident. Each party agrees to keep the other party fully informed of the underlying facts pertaining to the Data Security Incident and the party’s response, as they develop. 

      4.5 Service Feedback.  Notwithstanding any provision in this Agreement to the contrary, Jupiter may use, develop and implement any suggestions or other feedback concerning the Data Service provided by Customer or any of its users (collectively, “Feedback”) in connection with the development, operation, marketing and sale of the Data Service, in its discretion and with no compensation to any person providing Feedback.  Customer acknowledges and agrees that Jupiter will own all improvements, modifications and other Data Service developed by Jupiter based on Feedback provided by Customer and its users.

5. Restrictions. 

Customer will not: (a) use Licensed Data in any manner relating to near-term or real-time emergency management or planning; (b) use any portion of the Data Service or any Jupiter Mark in any manner other than as expressly permitted by this Agreement; (c) make any portion of the Data Service available to any other party other than as expressly permitted by this Agreement; (d) use any portion of the Data Service for the benefit of anyone other than Customer, unless expressly stated otherwise in a Customer Order; (e) copy, modify, distribute or otherwise transfer, publish or display any Jupiter Data, except as expressly permitted under Section 2.1 (Grants); (f) fail to protect Jupiter Data as described in this Agreement; (g) include any Jupiter Data in any service bureau or outsourcing offering or use any other method to share or resell any Jupiter Data; (h) attempt to gain unauthorized access to any portion of the Data Service or its systems or networks or use any portion of the Data Service in any way that circumvents a contractual usage limit; (i) attempt to reverse engineer Jupiter’s methodologies or other trade secrets from the Jupiter Data; or (j) use or access any portion of the Data Service in any way in support of building a competitive product or service.    

6. Indemnification  

     6.1   By Jupiter.  

               (a) General. Jupiter will defend, indemnify and hold Customer, its officers, directors and employees harmless against any third-party claim, demand, suit, investigation or proceeding (each, a “Claim”) made or brought against such party relating to or arising out of: (i) an allegation that the provision of the Licensed Data or use of the Platform Services as permitted hereunder infringes or misappropriates a third-party copyright, trade secret, trademark or patent; or (ii) Jupiter’s gross negligence or willful misconduct.  Jupiter will pay all costs, reasonable legal fees and any settlement amounts agreed to be paid by Jupiter or damages awarded against Customer in connection with any such Claim.  

              (b) Infringement Options.  If the use of the Data Service (or any portion of the Data Service) by Customer has become, the subject of any Claim, Jupiter may at its option and expense: (i) procure for Customer the right to continue using the Data Service as set forth herein; (ii) modify the Data Service to make it non-infringing; or (iii) if the foregoing options are not reasonably practicable, terminate this Agreement and refund Customer any unused pre-paid Fees.

              (c) Limitations.  Jupiter will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by: (i) use of the Data Service by Customer that is not in accordance with the terms of this Agreement; or (ii) the combination, operation or use of the Data Service with other applications, products or services where the allegedly infringing aspect of the Data Service would not by itself be infringing.   

     6.2  By Customer.  Subject to Jupiter’s obligations under Section 6.1 (By Jupiter), Customer will defend, indemnify and hold harmless Jupiter, its officers, directors and employees against any Claim relating to or arising out of: (a) Customer’s use or disclosure of any Licensed Data or Derived Data, including any statements made in connection with any such disclosure; (b) Customer’s breach of Section 5 (Restrictions); or (c) Customer’s gross negligence or willful misconduct.  Customer will pay all costs, reasonable legal fees and any settlement amounts agreed to be paid by Customer or damages awarded against Jupiter in connection with any such Claim.  

     6.3  Obligations.  A party entitled to indemnification under this Agreement (the “Indemnified Party”) will: (a) provide prompt written notice of the applicable Claim to the other party (the “Indemnifying Party”); (b) provide the Indemnifying Party with sole control of the applicable defense and settlement; and (c) cooperate as requested by the Indemnifying Party, at the Indemnifying Party’s expense.  The Indemnifying Party will not agree to any settlement unless such settlement includes a full release of the applicable Claim against the Indemnified Party.  

7. Disclaimer 

Except as expressly provided in this Agreement, the Jupiter Services and all related products and activities are provided “AS IS,” “AS AVAILABLE” and “WITH ALL FAULTS.” Any promises contained in this Agreement are in lieu of all other warranties, representations or conditions, whether express or implied, including implied warranties of merchantability, fitness for a particular purpose and non-infringement, or any other implied warranties arising from statute, course of dealing or course of performance, all of which are expressly disclaimed. Specifically, Customer acknowledges that Jupiter Data consists of projections with respect to which there are inherent uncertainties. The provision of Jupiter Data hereunder will not be deemed a representation, warranty or guarantee of any outcome. Customer agrees that Customer has full responsibility for making its own decisions, including, as between the parties, responsibility for any damages resulting from those decisions. Jupiter does not represent that the Jupiter Services will be uninterrupted or error free or that the Jupiter Services will meet Customer’s requirements. Customer acknowledges and agrees that, as a SaaS-based service, the features, functions and interfaces of the Data Service may change over time.

8. Limitation of Liability 

Except as described in this paragraph, under no circumstances and under no legal theory, whether in tort, contract, or otherwise, will either party be liable to the other party for any indirect, special, incidental, consequential or punitive damages of any character, including damages for loss of goodwill, lost profits, lost sales or business, computer failure or malfunction, lost data or any and all other similar damages or losses, even if such party knew or should have known of the possibility of such damages.  The foregoing exclusions will not apply to any breach of Section 4 (Data Protection), Section 5 (Restrictions) or any amounts payable to a third party under Section 6 (Indemnification). 

Excluding each party’s obligations under Section 6 (Indemnification), as well as Customer’s obligations under Section 3.1 (Fees) and Section 5 (Restrictions) hereunder, under no circumstances and under no legal theory, whether in tort, contract or otherwise, will either party’s liability under this Agreement exceed the amounts paid by Customer in the twelve-month period prior to the initial liability claim. 

Nothing in this Section is intended to limit either party’s liability in the event of any misappropriation or infringement of the other party’s intellectual property rights.

The provisions of this Section allocate the risks under this Agreement between the parties, and the parties have relied on the limitations set forth in this Section in determining whether to enter into this Agreement. 

9. Term and Termination  

        9.1  Term.  The term of this Agreement will commence on the Effective Date and will continue as long as a Customer Order or SOW is in progress. The subscription term stated in each Customer Order will renew automatically for the same duration, unless either party gives the other party written notice of its intent not to renew the subscription at least ninety days prior to the end of the then-current term.  Jupiter will give Customer at least ninety days prior notice of any planned price increases and any such increases will not take effect until the commencement of the following renewal term.  

        9.2 Termination.  Either party may terminate this Agreement immediately on giving notice in writing to the other party if the other party commits any material breach of any term of this Agreement and has not cured such breach within thirty days of its receipt of written notice of the breach.  In addition, either party may terminate this Agreement immediately on giving notice in writing to the other party if the other party files for bankruptcy; becomes or is declared insolvent, or is the subject of any proceedings related to its liquidation, insolvency or the appointment of a receiver or similar officer for it; makes an assignment for the benefit of all or substantially all of its creditors; or enters into an agreement for the cancellation, extension, or readjustment of substantially all of its obligations.  

       9.3 Suspension.  Jupiter may suspend access to the Platform Services in the event of any non-payment of Fees or other breach of this Agreement that is not cured within thirty days of delivery of notice of the applicable breach to Customer.  Additionally, notwithstanding any provision herein to the contrary, in the event of any activity by Customer or any of its users that has (or in Jupiter’s reasonable assessment is likely to have) an adverse effect on the operation of the Platform Services, Jupiter may temporarily suspend access to the Platform Services. In such event, Jupiter will notify Customer as soon as possible and will work with Customer in good faith to remedy the cause of the adverse effect.  

      9.4 Survival. Subject to the terms of Section 2.1 (Grants), the licenses contained in Section 2.1 will survive any expiration of the applicable Customer Order; provided that, Customer continues to comply with the terms of the license and the terms of Section 5 (Restrictions). In addition, the provisions of this Section 9.4 and the following Sections will survive any termination of this Agreement: Section 3 (Payment), Section 4 (Data Protection), Section 5 (Restrictions), Section 6 (Indemnification), Section 7 (Disclaimer), Section 8 (Limitation of Liability) and Section 10 (General).

10. General

      10.1 Marketing. Jupiter may use Customer’s name and logo for promotional purposes on Jupiter’s website and marketing materials, subject to the terms of any written trademark guidelines provided to Jupiter by Customer.  Customer may elect to terminate the use right described in this Section at any time by sending written notice of its election to Jupiter.  

      10.2 Compliance with Laws. Each party will comply with all applicable laws, rules and regulations, including laws pertaining to the export of technology, in connection with its activities under this Agreement.  

      10.3 Relationship.  Customer acknowledges that there is no advisory relationship created under this Agreement and that none of the Jupiter Services will be construed as the provision of any kind of advice. Customer will obtain all advice from its own business, financial or legal advisors.

      10.4 Limitation.  Customer’s rights under this Agreement are limited to those expressly stated in herein.  Except as expressly provided in this Agreement, nothing in this Agreement confers any right, title or interest in or to Jupiter’s intellectual property, including its patents, copyrights and trade secrets. 

      10.5 Governing Law.  This Agreement is governed by the laws of the State of Delaware, United States, without regard to its conflict of law principles. 

      10.6 Arbitration.  All disputes related to or arising out of this Agreement will be resolved exclusively by binding arbitration under Commercial Arbitration Rules of the American Arbitration Association (“AAA”).  Either party may send a notice to the other party of its intention to file a case with the AAA under this Section (an “Arbitration Notice”).  The arbitration will be conducted in San Mateo, California by a single arbitrator knowledgeable in trade secret, copyright and the commercial aspects of SaaS-based services.  The parties will mutually appoint an arbitrator within thirty days of the Arbitration Notice.  If the parties are unable to agree on an arbitrator, then the AAA will appoint an arbitrator who meets the stated knowledge requirements.  Prior to the hearing, each party will have the right to take up to four evidentiary depositions, and exchange one set of document production requests and one set of not more than twenty interrogatories.  The arbitrator will provide detailed written explanations to the parties to support their award and will grant to the prevailing party the costs and fees (including legal, accounting and expert witness fees) incurred by such party.  The arbitration award will be final and binding and may be enforced in any court of competent jurisdiction in keeping with the 1958 United Nations Convention of the Recognition and Enforcement of Foreign Arbitral Awards. 

       10.7 Equitable Relief.  Each party acknowledges that a breach by it of the terms of Section 4 (Data Protection) or Section 5 (Restrictions) would cause irreparable harm to the affected party for which the affected party could not be adequately compensated by money damages.  Accordingly, each party agrees that, in addition to all other remedies available to the affected party in an action at law, in the event of any breach or threatened breach of Section 4 (Data Protection) or Section 5 (Restrictions), the affected party will be entitled to temporary and permanent injunctive relief, including specific performance of the terms of this Agreement.

       10.8 Notices.  Marketing and business-related notices between the parties may be delivered by email. All legal (e.g., dispute-related) notices relating to this Agreement must be in writing and sent to each party its then-current primary place of business or such other address provided by the recipient.  Each legal notice provided under this Agreement must be sent using a major overnight delivery service or mailed in a manner that requires signature by the recipient.  On the same day that a party initiates a legal or dispute related notice, the party will also send a courtesy copy of the notice by email.   

       10.9 Force Majeure.  Neither party will be liable under this Agreement for non-performance caused by events or conditions beyond that party's control if the party makes reasonable efforts to perform.

       10.10 No Assignment.  Neither party may assign this Agreement in whole or in part except, upon written notice to the other party, to (a) an Affiliate or (b) a successor in interest in the event of a merger or sale of such party (including sale of substantially all of the assets of such party).  Any assignment in violation of this subsection will be deemed null and void.  

        10.11 Entire Agreement.  This Agreement together with any mutually agreed Addenda constitute the entire agreement between the parties concerning the subject matter herein and supersede any and all prior communications and agreements whether written or oral concerning the subject matter hereof.  Each party hereby acknowledges that no reliance is placed on any representation made but not referenced in this Agreement.  No purchase order or other text that purports to modify or supplement the printed text of this Agreement will add to or vary the terms of this Agreement. 

        10.12 Interpretation.  This Agreement has been negotiated by the parties, each of which is represented by legal counsel, and will not be construed in favor of the original non-drafting party.  The term “including” as used through this Agreement is intended to mean “including without limitation” in each instance.    

        10.13 Modifications; Severability.  Except as expressly provided herein, any modification to this Agreement must be made in writing and signed by an authorized representative of each party.  If any provision of this Agreement is held to be unenforceable, then such provision will be reformed to the extent necessary to make it enforceable, and such holding will not impair the enforceability of the remaining provisions.  

        10.14 Waiver. The failure by a party to exercise any right hereunder or to enforce strict performance of any provision of this Agreement will not waive such party's right to exercise that or any other right in the future.

Exhibit A                                                           Service Level Addendum and Support Terms

A. Availability SLA

      1. Availability Promise.  Jupiter will use reasonable commercial efforts to ensure that the Platform Services have a Monthly Percentage Uptime of at least 99.9% (“Availability Promise”).  Subject to the terms of this SLA, if the Monthly Percentage Uptime in a given month is less than 99.9%, then Customer will be entitled to service credits as further described in Section A2 below. 

“Monthly Percentage Uptime” is a percentage calculated by subtracting the total number of minutes of Downtime in a calendar month from the total number of minutes in that calendar month and dividing that result by the total number of minutes in the applicable calendar month. “Downtime” means the number of minutes in a calendar month when the Platform Services are unavailable for use, excluding Emergency Downtime, Scheduled Downtime, and the circumstances described in Section C (Exclusions) below. “Emergency Downtime” means unavailability due to remediation of a vulnerability that Jupiter reasonably determines requires immediate attention. “Scheduled Downtime” means unavailability resulting from scheduled maintenance of the Platform Services, performed in windows of 10 minutes or less and not to exceed 4 hours in a given calendar month.    

     2. Service Credit.  Subject to the terms of this Section A (SLA), if the Monthly Percentage Uptime is less than the Availability Promise in a given calendar month, then Customer may request a credit (the “Service Credit”) calculated as described in the table below.  The Service Credit is calculated as a percentage of the applicable pro-rated Fees for the affected calendar month.  

In order to receive any Service Credit, Customer must request each Service Credit within thirty days of the applicable failure following the instructions provided by Jupiter from time to time.  Each Service Credit reported as described in this paragraph will be applied to future, unpaid Fees. If Customer does not incur future Fees, then promptly following expiration or termination of the applicable Customer Order, Jupiter will pay Customer any outstanding credits payable under this Section A2.

    3. Sole and Exclusive Remedies. Notwithstanding any provision to the contrary in any agreement between the parties, the remedies provided in Section A2 and A3 above will be Customer’s sole and exclusive remedies, and Jupiter’s sole and exclusive obligation, in connection with any failure to meet the Availability Promise.

B. Support Services

    1. Support Services.  Jupiter will provide basic support services and Error (as defined below) correction for each of the Platform Services as further described in this Section B.  Any additional support services will be agreed to by the parties and described in the applicable Customer Order.  

    2. Support Hours and Requests.  Support for each Platform Services will be provided during the Business Hours described below. Customer will submit support requests in the manner communicated by Jupiter to Customer from time to time. 

    3. Error Correction.  

        (a) Errors. “Error” means a failure of the Platform Services to operate in accordance with its Documentation.  Each Error will be assigned one of the                 following Severity Levels, as reasonably determined by Jupiter:  

               “Critical Severity Level” means that the Platform Services are inoperable for users.

               “High Severity Level” means that the operation of Platform Services or a significant function of the Platform Services are severely limited or                 degraded and no work around is available. 

               “Medium Severity Level” means a moderate loss of functionality or performance of the Platform Services but the major components of the Platform                  Services remain useable.

               “Low Severity Level” means there is no material impact on operation of the Platform Services; “Low Severity Level” includes product feature                 requests.

        (b) Support Response.  Jupiter will respond to Errors in the operation of the Platform Services as further described in the table below.  Jupiter may                 temporarily resolve Errors by providing a reasonable workaround.

C. Exclusions

Jupiter will have no obligation under this Availability SLA and Support Terms or any other agreement with Customer for any “Downtime” or “Errors” caused by: (a) hardware, software or services not provided by Jupiter; (b) Customer’s use of the Platform Services in a manner not in accordance with its Documentation or Jupiter’s reasonable instructions; or (c) by other factors outside of Jupiter’s reasonable control, including without limitation, any network or device failure external to data centers operated by Jupiter or its vendors, natural disasters, war, acts of terrorism or government action.

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