Assure MIMIX Supplemental Terms

Effective as of October 13, 2023

Assure MIMIX (“MIMIX”) is an offering of Skytap, Inc. (“Skytap” or “Publisher”) in the Azure Marketplace (the “Marketplace”). Your purchase of a MIMIX subscription as well as other Skytap offerings (collectively, “Offerings”) through the Marketplace are subject to the terms and conditions of the Microsoft Standard Contract, Amendment, and Skytap’s Privacy Policy located HERE (collectively, the “Agreement”) between you and/or the entity you represent (“you”, “your”, or “Customer”) and Skytap. These Assure MIMIX Supplemental Terms (“Supplemental Terms”) supplement the Agreement and your use of MIMIX. You represent to Skytap that you are lawfully able to enter into contracts and, if representing an entity, you are authorized to enter into contracts on behalf of and bind such entity.

BY CHECKING THE CHECKBOX TO ENABLE INTEGRATION OF MIMIX INTO YOUR SKYTAP ENVIRONMENT OR OTHERWISE USING MIMIX, YOU AND THE ENTITY YOU REPRESENT REAFFIRM YOUR AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THE AGREEMENT AND TO AGREE TO BE BOUND BY THESE SUPPLEMENTAL TERMS IN CONNECTION WITH YOUR USE OF MIMIX. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS SET FORTH IN THE AGREEMENT AND THE SUPPLEMENTAL TERMS, DO NOT ENABLE OR USE MIMIX.

  1. Definitions. Unless otherwise defined in these Supplemental Terms, all capitalized terms used in these Supplemental Terms will have the same meanings ascribed to them in the Agreement.

    “Order” means Customer’s ordering of a MIMIX subscription by selecting “Enable Assure MIMIX” in your Skytap account subject to the terms of the Agreement and these Supplemental Terms.

    “Enhancements” means any updates, upgrades, modifications, new releases and/or corrective programming that are provided by Precisely Software Incorporated (“Precisely”) and included as part of Maintenance Services.

    “Maintenance Services” means the support and maintenance services provided to you in connection with your MIMIX subscription.

  2. Use of MIMIX. In addition to the use restrictions set forth in the Agreement, Customer may use MIMIX solely in your Skytap environment at the Azure data centers selected by you through your Skytap account.

  3. Maintenance Services. Skytap will, during the Term of your MIMIX subscription, and to the extent Customer has timely paid fees related to your MIMIX subscription, provide Customer with all Enhancements and Maintenance Services for MIMIX.

  4. Modifications to MIMIX; Discontinuance of MIMIX.

    1. Modifications to MIMIX. In the event that Precisely makes any material changes or modifications to the functionality or features of MIMIX or any component thereof that materially reduces or impairs functionality or features of MIMIX, Skytap will provide Customer at least sixty (60) days prior written notice of such changes or modifications. Skytap will continue to provide Maintenance Services to the most recent version of MIMIX that does not include such changes or modifications for at least one hundred eighty (180) days following delivery of such notice.

    2. Discontinuance of MIMIX. In the event that Skytap withdraws or discontinues the MIMIX Offering and related Maintenance Services, Skytap will provide Customer at least sixty (60) days prior written notice. Skytap will continue to provide MIMIX to Customer in its Skytap environment for the duration of the current Term of Customer’s MIMIX subscription, but not to exceed twenty-four (24) months.

  5. Representations and Warranties; Disclaimer.

    1. Skytap represents and warrants that during the ninety (90) days following integration of MIMIX in your Skytap environment, or such other period set forth in the Order, MIMIX will perform all material functions set out in MIMIX’s Documentation and otherwise operate in substantial accordance with such Documentation.

    2. If MIMIX fails to comply with the warranty set forth in Section 4(a) above, Customer must notify Skytap in writing of any alleged non-conformities, in which event Skytap will make reasonable efforts to correct the non-conformance. If Skytap is unable to correct the non-conformance for reasons for which Skytap is responsible, then Customer may terminate its MIMIX subscription and receive a refund of all fees paid in advance less any usage received. The above is Skytap’s entire liability and Customer’s exclusive remedy for breach of warranty with respect to Customer’s use of MIMIX.

    3. SKYTAP DOES NOT WARRANT THAT MIMIX WILL OPERATE ERROR FREE OR THAT SKYTAP WILL CORRECT ALL ERRORS IN MIMIX. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THESE SUPPLEMENTAL TERMS, MIMIX IS PROVIDED “AS IS” AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MIMIX AND ITS THIRD PARTY SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO CUSTOMER’S USE OF MIMIX, INCLUDING, BUT NOT LIMITED TO, (A) ANY WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF SKYTAP IS INFORMED OF THE PURPOSE), ACCURACY, RELIABILITY, OR NON-INFRINGEMENT, OR (B) ANY WARRANTIES ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. SKYTAP IS NOT LIABLE FOR DELAYS, FAILURES OR PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE SKYTAP’S CONTROL. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT ANY STATUTORILY REQUIRED WARRANTIES WILL BE LIMITED TO THE SHORTEST LEGALLY PERMITTED PERIOD.

  6. Export Control and Anti-Corruption.

    1. Export Restrictions. Customer acknowledges that MIMIX and other Offerings are subject to the export control and sanctions laws and regulations of the United States (“U.S.”) and may also be subject to the laws and regulations of any country in which MIMIX, other Offerings, Customer Data, content, data or other materials are provided, accessible, incorporated, transferred, or received. Customer, End Users, and any other users of MIMIX, other Offerings, Customer Data, content, data, or other materials (including, but not limited to, Customer’s employees, contractors, or other third parties acting on Customer’s behalf) (“Customer Persons”) will comply with all applicable export control and sanctions laws and regulations. Customer represents and warrants that Customer and all Customer Persons (i) are not an entity, citizen, or resident of, or located within, a country or territory that is subject to a U.S. Government embargo or designated by the U.S. Government as a state sponsor of terrorism (including without limitation, Cuba, Iran, North Korea, Syria, the Crimea Region, and the Donetsk People’s Republic and Luhansk People’s Republic located in Ukraine) (“Embargoed Countries”); (ii) are not acting on behalf of, or directly or indirectly owned or controlled by any governmental entity of any Embargoed Country; (iii) are not identified on any prohibited party list maintained by the U.S. Government, including the Specially Designated Nationals and Blocked Persons List, Foreign Sanctions Evaders List, and Sectoral Sanctions Identification List maintained by the Office of Foreign Assets Control of the U.S. Treasury Department, and the Denied Persons List, Entity List, and Unverified List maintained by the Bureau of Industry and Security of the U.S. Commerce Department (collectively, the “Prohibited Party Lists”); (iv) are not 50% or more owned (individually or in the aggregate), or otherwise controlled, by persons designated on a Prohibited Party List; (v) are not acting on behalf of the government of Venezuela, including any person or entity employed or owned or controlled, directly or indirectly, by any political subdivision, agency, or instrumentality of the government of Venezuela; and (vi) will not utilize MIMIX, other Offerings, or any portion thereof for military purposes or end uses, or in the design, development or production of nuclear, chemical, or biological weapons. Customer agrees that it will not export, re-export, or transfer MIMIX or other Offerings except in compliance with U.S. law and subject to the restrictions on transfer set forth in the Agreement and these Supplemental Terms. Customer specifically agrees not to, and shall not allow Customer Persons to, export, re-export, transfer, or download MIMIX or other Offerings, including its source or object code, the underlying information or technology, or any related encryption: (a) to any Embargoed Country or to any national of any such country when such embargoes or restrictions are in effect; (b) to any end user who you know or have reason to know will utilize the Software or portion thereof for military purposes or end uses, or in the design, development or production of nuclear, chemical, or biological weapons; (c) to any person who is designated on a Prohibited Party List or who is 50% or more owned (individually or in the aggregate), or otherwise controlled by, persons designated on a Prohibited Party List; or (d) without a license or other governmental authorization if required by law. Customer is solely responsible for complying with local laws in its jurisdiction that might impact its right to import, export or use MIMIX or other Offerings. Customer understands and acknowledges that Skytap shall have the right to direct Customer to terminate any Customer Persons who are in violation of, or who cannot make the representations provided in, this Section 6, and Customer warrants that it shall take steps to then immediately terminate and prohibit such Customer Persons from accessing or using MIMIX, other Offerings, Customer Data, content, data, or other materials. If Customer does not terminate such Customer Persons, Skytap reserves the right to terminate its relationship with Customer.

    2. Anti-Bribery Compliance. Customer warrants that it has not taken and will not take, any action, directly or indirectly, in violation of (i) the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. §§ 78dd-1, et seq.), (ii) the UK Bribery Act 2010, or (iii) any other applicable anti-corruption or anti-bribery laws.