Enterprise Solution Agreement

The Parties. This Agreement is by and between VictoriaMetrics Inc. (the “Provider”) and the corporate entity that adopts these terms by reference in an Order (the “Customer”).

Provider Affiliate Defined. A “Provider Affiliate” is defined as an entity that controls, that is controlled by, or that is under common control with the Provider.

Provider Affiliates Obligations and Rights. Provider Affiliates may perform the obligations and exercise the rights of the Provider under this Agreement. The Provider will be liable for the actions of its Affiliates in connection with this Agreement, and the Customer will bring any claims related to this Agreement against Provider alone.

Customer Affiliate Defined. A “Customer Affiliate” is defined as an entity that controls, that is controlled by, or that is under common control with the Customer.

Customer Affiliates Obligations and Rights. Customer Affiliates may utilize the Enterprise Solution under Orders executed by the Customer.

Subcontractor defined. A “Subcontractor” is defined as a third party that (i) provides personnel to the Provider, when such personnel have access to the Customer’s data or (ii) provides the professional services delivered to the Customer as a complement to the Enterprise Solution.

Approved Subcontractors. The Customer hereby approves of Subcontractors listed in an Approved Subcontractor Exhibit to the Agreement.

Assignment by the Provider Prohibited Absent Consent. The Provider may not assign this Agreement or any Order without the Customer’s written consent, and any attempted assignment made without such consent will be void. The Customer will not unreasonably withhold consent to an assignment that is (i) made to an Affiliate or (ii) made to a successor entity in the course of a merger or acquisition. Examples of reasonable grounds for withholding consent are (i) when the successor entity is a direct competitor of the Customer; (ii) when the successor entity and the Customer have litigated a dispute against each other; or (iii) when the Customer has a reasonable belief that the Affiliate or successor entity will be unable to perform its obligations under the Agreement.

Assignment by the Customer Prohibited Absent Consent. The Customer may not assign this Agreement or any ordering document without the Provider’s written consent, and any attempted assignment made without such consent will be void. The Provider hereby provides written consent to an assignment that is (i) made to an Affiliate or (ii) made to a successor entity in the course of a merger or acquisition.

Term. This Agreement is effective as of the effective date of the first Order between the parties (the “Effective Date”). This Agreement will terminate naturally 30 days after the last day of the term set on the Customer’s Orders.

Termination for Breach of the Agreement. If a party breaches this Agreement, and if the breach is capable of being cured and is not a breach of the Intellectual Property, Confidentiality, or Use of the Enterprise Solution by the Customer provisions, then the non-breaching party, prior to terminating for breach, will provide notice of breach and intended termination of (i) any one or more ordering documents or (ii) this Agreement and all ordering documents. If the breach is not cured within 30 days of the date of such notice, then the intended termination will become automatically and immediately effective.

Termination for Breach of an Order. If a party breaches an Order (but not this Agreement), then the non-breaching party, prior to terminating for breach, will provide notice of breach and intended termination of the Order. If the breach is not cured within 30 days of the date of such notice, then the intended termination will become automatically and immediately effective.

Survival of Terms. If the term of an Order extends beyond the term of the Agreement, then the Agreement will remain in effect for the limited purpose of providing continuity of terms for that Order until the end of that Order’s current term. Rights and obligations established under this Agreement that must survive termination in order to have their customarily intended effect (such as rights and obligations related to confidentiality, indemnification, limitation of liability and damages, and data and intellectual property) will so survive.

The Enterprise Software. The Enterprise Software is and will remain the sole property of the Provider, and the Provider is and will remain the sole owner of all intellectual property embodied or practiced by the Enterprise Software. The Provider grants the Customer a non-exclusive, limited license to use, copy, prepare derivative works of, display, transmit, perform, and distribute the Enterprise Software as may be necessary for the Customer to use its documented functionality, for the duration of the subscription and to the limits of the scope described in an Order.

Feedback. Suggestions for improvements to any element of the Enterprise Solution that are provided by the Customer will be provided without restriction and will not operate to grant the Customer an ownership interest in any intellectual property embodied or practiced by the Enterprise Solution. If a conveyance of intellectual property rights (such as an assignment or license) is required to achieve this result, the Customer will grant such a conveyance.

Reservation of Rights. Each party reserves all intellectual property rights not expressly granted in this Agreement.

Relationship to NDA. If the Parties have previously executed a nondisclosure agreement, then the terms related to confidential information established in this Agreement will supersede that nondisclosure agreement as of the Effective Date.

General Definition of Confidential Information. “Confidential Information” is defined to include all information, regardless of the medium through which it is conveyed, that is provided by one party to the other in relation to this Agreement and that a reasonable industry participant would deem likely to be confidential.

Exclusions from Confidential Information. Confidential Information is defined to exclude information that the receiving party acquired through means other than a disclosure by the disclosing party, unless the receiving party knew or should have known that the availability of such information was due to misappropriation or misuse.

Use and Protection of Confidential Information. A receiving party will use the Confidential Information of the disclosing party only as necessary to perform its obligations and exercise its rights under this Agreement and will use reasonable care to protect such Confidential Information. At the termination of this Agreement, or upon the disclosing party’s request, the receiving party will destroy the disclosing party’s Confidential Information that is then in its possession.

Legally Compelled Disclosure. If the receiving party reasonably anticipates that it will be legally required to disclose Confidential Information, it will use its best efforts: (i) to timely notify the disclosing party; (ii) to limit the disclosure, such as by seeking a protective order in relation to the Confidential Information disclosed.

Trade Secrets. The receiving party’s obligation to maintain the confidentiality of the disclosing party’s trade secrets will survive the termination of this Agreement, enduring until such time as the information no longer satisfies the requirements of a trade secret.

Stipulation Regarding Preliminary Injunctions and Temporary Restraining Orders. The parties stipulate that the unauthorized use or disclosure of Confidential Information would result in immediate and irreparable injury, loss, or damage to the disclosing party.

Complete Agreement. This Agreement, attachments to this Agreement (such as exhibits and addenda), and Orders contain the complete agreement between the Parties in relation to its subject matter, superseding all prior or contemporaneous written or oral contracts. Neither party enters into this agreement based on any representation not stated herein. This agreement may only be amended in a writing that references it and states the Parties’ intent that it be amended through such writing. No terms automatically presented to the Customer or the Provider as part of a vendor onboarding or order processing workflow (such as terms attached to a purchase order or presented by a vendor management platform) will bind the Parties, notwithstanding any action undertaken to proceed through such workflow (such as accepting a purchase order or clicking a checkbox to accept terms).

Severability. If any part of this Agreement (including entire provisions or any part thereof) is determined to be unenforceable (for any reason) but the remainder of the Agreement contains lawful distinct objects, then the unlawful part of the Agreement will be severed and the lawful objects will remain enforceable.

Conflicts Between Documents. The Agreement, attachments to this Agreement (such as exhibits and addenda), and Orders will be interpreted as a single agreement, such that, for example, silence on a topic in any one document will not be interpreted as a conflict with an explicit statement on that same topic in another document. If explicit statements in different documents are in conflict with one another, then the order of precedence will favor (i) a document that explicitly notes the conflict and states an intention to control or (ii) if no such note and statement exists, then, this main document, followed by an attachment to this document, followed by an Order.