MASTER SUBSCRIPTION AGREEMENT

THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS YOUR PURCHASE AND USE OF RIGHTSCALE SERVICES.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE IN CONNECTION WITH AN ONLINE PURCHASE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

YOU MAY NOT ACCESS THE SERVICES IF YOU ARE A RIGHTSCALE COMPETITOR OR ACTING ON BEHALF OF A RIGHTSCALE COMPETITOR. IN ADDITION, YOU MAY NOT ACCESS THE SERVICES FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE, OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES EXCEPT WITH RIGHTSCALE’S PRIOR WRITTEN CONSENT.

1. Definitions

“Account” corresponds to each Client account established in connection with use of the RightScale Platform, represented in each case by by a single set of access credentials from RightScale and the applicable Cloud Instrastructure Service.

“Authorized User” shall mean any individual Client authorizes to access or use the Services on Client’s behalf.

“Certified Cloud” shall mean the then-current cloud infrastructure service providers made accessible in the account settings page on the my.rightscale.com site

“Components” shall mean any template, script, machine image, macro or other technology or documentation published to or available from the RightScale MultiCloud Marketplace, currently located at https://my.rightscale.com/library/.

“Fees” shall mean any fee or charge set forth in an Order Form.

“Order Form” shall mean a written document signed by Client and RightScale, or an electronic form submitted by Client and accepted by RightScale, that identifies a Service that Client has agreed to purchase and the corresponding Fees for such Service,

“Services” shall mean the services made available by RightScale from time to time.

“Purchased Services” shall mean the specific Services that Client has agreed to purchase as set forth in an Order Form or other binding purchase commitment.

“RightScale Compute Unit” or “RCU” shall mean a unit of measurement corresponding to a standard unit of measure used to equate equivalent compute capacity across multiple instance sizes and disparate Cloud Infrastructure Services.

“RightScale Materials” shall mean any software developed by RightScale and distributed to or accessed by Client hereunder as well as any documentation relating to the Services.

“RightScale Platform” shall mean the RightScale Management System, RightScale Component Library, RightScale Components, the RightScale Materials, and all other Services, including the data and information relating thereto but specifically excluding: (i) the underlying physical infrastructure which the RightScale Platform accesses and relies upon, (ii) the infrastructure made available by a Cloud Infrastructure Provider, and (iii) Client software, applications, and data and any third-party software, applications, or data which utilize or are available through the RightScale Platform.

2. RightScale Services

2.1 RightScale shall make the Purchased Services available to Client pursuant to this Agreement and the terms of the relevant Order Form(s) during the applicable subscription Term. Client understands and agrees that Client’s purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by RightScale or its representatives regarding future functionality or features of the Services.

2.2 Upon Client’s execution of an Order Form setting forth the specific Service(s) and corresponding Fees, RightScale will make available to Client one or more of the following Services:

RightScale Management System: the technology platform operated by RightScale and accessible at www.rightscale.com and my.rightscale.com that enables Client to initiate, manage, monitor, and report on actions and activity of Client’s cloud applications, server instances, and other cloud infrastructure resources. Client access to the RightScale Management System may be limited to a specified number of Accounts and/or Authorized Users as noted in the Order Form;
RightScale Compute Units: a specific monthly or annual allotment of RCUs to access and manage cloud compute resources in any calendar month or year; if not used in the applicable month or year the RCUs will no longer be available to Client. The RCU mapping for the respective Cloud Infrastructure Service shall be included on the Order Form.
RightScale MultiCloud Marketplace: an online library of Components made available to users of the RightScale Platform; and right to access and use for Client’s internal business purposes a variety of RightScale Components then-available in the RightScale MultiCloud Marketplace, subject to payment of additional fees for designated Components and subject to use only in connection with Accounts and RightScale editions for which such Components have been made available.
Problem Resolution Support: RightScale’s standard Client support relating to problems identified by Client relating to the RightScale Platform. The specific level of support purchased by Client may result in different response times, support hours, number of incidents, and type of support.
Consultative Support: access to technical support from RightScale relating to Client’s use of the RightScale Platform. The specific level of support may be limited by either a specified number of incidents, a total number of hours of technical support, and/or a specified number of days following the Effective Date of a purchase in which such support is available to Client.
Educational Resources: RightScale resources in the form of online tutorials, webinars, knowledgebase articles, product documentation, and other information made available to Client relating to the Services.
Training Services: RightScale’s “Jump Start” training class or the standard instructor-lead training program based on RightScale’s then-current standard curriculum.
Additional Services: Additional professional services, such as custom training and consulting, as further defined in an Order Form that may include a project-specific Statement of Work.
Third Party Software: Access to software from third parties, which may require payment of a license fee by Client and will require that Client agree to and comply with the End User License Agreement provided with such Third Party Software.
Third Party Services: Access to services from third parties, which may require payment of a service fee by Client and may require that Client agree to and comply with the Terms of Service provided with such Third Party Service.
Packages: a combination of some or all of the items referenced above.

3. Cloud Infrastructure Service

3.1 Client is responsible for selecting one or more public or private cloud computing services for the provision of compute capacity, data storage, data transmission, network and related infrastructure services (“Cloud Infrastructure Service”).

3.2 The Cloud Infrastructure Services that operate with the RightScale Platform are identified on RightScale’s website (each a “Certified Infrastructure Service”) and may be changed by RightScale from time to time. Client understands and agrees that the full benefits of the RightScale Platform may not be available if Client does not elect to use a Certified Infrastructure Service and RightScale bears no liability or responsibility for any matters arising from or relating to Client’s use of a Cloud Infrastructure Service that is not a Certified Infrastructure Service. Furthermore any Client use of private Cloud Infrastructure Services are subject to installation specifications published at support.rightscale.com, which may be changed by RightScale from time to time.

3.2 RightScale, at its option, may arrange with one or more providers of Cloud Infrastructure Services to provide a single invoice for the RightScale Service and the Cloud Infrastructure Service. If this arrangement is indicated on the Order Form, Client will pay RightScale for the Cloud Infrastructure Service in accordance with the terms and conditions of this Agreement and the respective Order Form.

3.3 All Client use of a Cloud Infrastructure Service is subject to the third-party provider’s terms and conditions, and Client agrees to comply with those terms and conditions related to the Cloud Infrastructure Service as made available to Client from time to time. Client’s breach of the terms and conditions regarding the Cloud Infrastructure Service will be considered a breach of this Agreement. If RightScale is providing a single bill for the RightScale Service and Cloud Infrastructure Service, RightScale may terminate that single billing arrangement at any time and for any reason upon written notice to Client.

3.4 THE CLOUD INFRASTRUCTURE SERVICE IS NOT A RIGHTSCALE SERVICE AND IS NOT PART OF THE RIGHTSCALE PLATFORM. RIGHTSCALE IS NOT RESPONSIBLE FOR THE CLOUD INFRASTRUCTURE SERVICE OR FOR ANY ACTS OR OMISSIONS OF THE THIRD-PARTY PROVIDER OF THE CLOUD INFRASTRUCTURE SERVICE. CUSTOMER ACKNOWLEDGES THAT THE PROVIDER OF THE CLOUD INFRASTRUCTURE SERVICE MAY IMPLEMENT PROCEDURES THAT WOULD MAKE IT DIFFICULT OR IMPOSSIBLE TO ACCESS CLIENT’S DATA, OR THE RESOURCES MADE AVAILABLE VIA THE CLOUD INFRASTRUCTURE SERVICE, IN CERTAIN CIRCUMSTANCES (E.G., IN THE CASE OF A VIRUS, DENIAL-OF-SERVICE, OR SIMILAR ATTACK; TRANSMISSION OR STORAGE OF INFRINGING OR ILLEGAL CONTENT; USE FOR BULK EMAIL; USE THAT COULD OR DOES HARM THE THIRD-PARTY’S NETWORKS OR SERVERS; OR COMPROMISE OF SECURITY).

4. Client Responsibilities

4.1. General Responsibilities. Client shall (i) be responsible for each Authorized User’s compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Client data entered in or stored on the RightScale Platform; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify RightScale promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the terms of this Agreement and all applicable laws and government regulations.

4.2 RightScale Component Library: Any Component that Client elects to publish to the RightScale Component Library shall be governed by the Publisher Agreement set forth at support.rightscale.com.

4.3 Client Accounts and Authorized Users. Accounts may not be transferred or assigned to another entity without the written consent of RightScale. Credentials provided to an Authorized User to access an Account may not be shared or used by more than one person.

4.4 Client Back-Ups. Client acknowledges that Client is responsible for creating back-ups of its data and any other content provided or used by Client within the RightScale Platform. RightScale shall have no obligation to maintain any such content or to forward any content to Client or any third party.

4.5 Client Keys. Client may elect to provide RightScale access to keys, credentials, or passwords (“Keys”) to access Client’s applications and/or technology infrastructure. By providing RightScale any such Keys, Client authorizes RightScale to use those Keys and to access Client applications and infrastructure for the purpose of providing Services under this Agreement.

4.5 General Restrictions. Client shall not (a) make the Services available to anyone other than Authorized Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) interfere with or disrupt the integrity or performance of the RightScale Platform or third-party data contained therein, or (e) attempt to gain unauthorized access to the RightScale Platform or any related systems or networks.

4.6 Service-Specific Restrictions. Individual Services may be subject to other limitations set forth in the Order Form, such as limits on disk storage space, compute capacity, and support requests.

5. Deliverables

Certain Services may involve the creation and/supply to Client of specified work product (“Deliverable”). All Deliverables will be made available to Client via one of RightScale’s managed, access-restricted servers, via the RightScale Platform. RightScale’s delivery of a notification of the Deliverable’s availability shall constitute delivery of such Deliverables. Client’s rights in a Deliverable shall be set forth in the Order Form for that Deliverable.

6. Pricing and Payment Terms

6.1 Fees for Services. The pricing and payment terms for the Purchased Services shall be set forth in an Order Form. Client shall pay all fees specified in any Order Form executed hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the number of Authorized Users covered by a subscription cannot be decreased during the relevant Initial Term stated on the Order Form.

6.2 Invoicing and Payment. Client will provide RightScale with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to RightScale. If Client provides credit card information, Client thereby authorizes RightScale to charge such credit card for all Services listed in the Order Form for the Initial Term and any renewal Term(s). Charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. Unless specified otherwise on the applicable Order Form RightScale will invoice Client in advance for all regular recurring fees, such as subscription Fees, and invoice Client in arrears for all usage-based Fees. Unless otherwise stated in the Order Form the Fees for Services that involve training and consulting shall be invoiced 50% upon RightScale’s acceptance of the Order Form and 50% upon delivery of the Service. Unless otherwise stated in the Order Form, invoiced charges are due upon receipt of invoice. For Services that are activated in the middle of a calendar month, RightScale reserves the right to invoice Client a pro-rata portion of that month’s Fees taking into account the number of days in the month during which Client had access to the applicable Service. Client is responsible for providing complete and accurate billing and contact information to RightScale and notifying RightScale of any changes to such information.

6.3 Taxes. Client shall pay any sales, use, or other transfer taxes that may be applicable to the Services provided under this Agreement.

6.4 Late Payments. Client shall pay RightScale a service charge for all overdue amounts equal to the lesser of 1.0 percent (1.0%), calculated on the aggregate overdue balance, at the end of each month or the maximum amount permitted by law.

7. Proprietary Rights

7.1. Ownership; Reservation of Rights. Subject to the limited rights expressly granted to Client hereunder, RightScale reserves all rights, title and interest in and to the RightScale Platform and the Services, including all related intellectual property rights. No rights are granted to Client hereunder other than as expressly set forth herein.

7.2 Restrictions. Client shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services except as authorized herein, (iii) reverse engineer the Services, or (iv) access the Services in order to build a competitive product or service, or copy any features, functions or graphics of the Services.

7.3 Feedback. RightScale shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Client and Client’s Authorized Users relating to the Services. Notwithstanding anything to the contrary in this Agreement, RightScale also shall be free to use for any purpose the Residuals resulting from access to or work with the Confidential Information of Client, including but not limited to use of Residuals in development, manufacture, marketing and maintenance of RightScale’s own products and services, provided that this use right does not and shall not represent a license to any valid patent, trade secret, or copyright of Client. The term “residuals” means Confidential Information in intangible form, which is retained in memory by persons who have had access to the Confidential Information, including ideas, concepts, know-how, or techniques contained therein.

7.4 Federal Government Use Provisions. RightScale provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with RightScale to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

8. Representations & Warranties

8.1 Client represents that it has full power and authority to enter into this Agreement and that it is binding upon Client and enforceable in accordance with its terms.

8.2 RightScale represents that it has full power and authority to enter into this Agreement and that it is binding upon RightScale and enforceable in accordance with its terms.

8.3 RightScale further represents and warrants that: (a) it will provide the deliverables and all Services hereunder in accordance with prevailing, generally accepted industry standards for similarly priced deliverables and services; (b) that at the time of delivery all deliverables and Services will substantially conform to the their then-current specifications. As Client’s sole remedy and RightScale’s sole and exclusive liability for breach of this Section 8.3, if Client notifies RightScale of a breach of the foregoing warranty within thirty (30) days after the applicable breach occurs, RightScale will, at its option, either re-perform at no additional charge any Services that breach the foregoing warranty or refund the Fees paid by Client for any Services that breach the foregoing warranty.

8.4 EXCEPT AS EXPRESSLY PROVIDED HEREIN, RIGHTSCALE MAKES NO OTHER WARRANTIES AND DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AS TO ITS PERFORMANCE UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

9. Limitation of Liability

CLIENT ACKNOWLEDGES THAT ITS USE OF THE RIGHTSCALE PLATFORM AND ASSOCIATED SERVICES ARE PROVIDED BY RIGHTSCALE ON AN “AS IS” BASIS AND AT CLIENT’S OWN RISK. RIGHTSCALE DISCLAIMS ALL LIABILITY TO CLIENT OR ITS CUSTOMERS THAT MAY RESULT FROM SUCH USE, INCLUDING FROM ANY FAILURE OR MALFUNCTION OF RIGHTSCALE’S PLATFORM, INCLUDING THE SUPPORTING INFRASTRUCTURE AND SERVICES PROVIDED BY THIRD PARTIES, AS WELL AS ANY MISUSE BY CLIENT’S EMPLOYEES, CONTRACTORS OR OTHER RELATED THIRD PARTIES.

IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOSS OF USE, LOSS OF PROFITS, INTERRUPTION OF BUSINESS, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES ARISING HEREFROM OR RELATED HERETO IN ANY CAUSES OF ACTION OF ANY KIND, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES. RIGHTSCALE’S AGGREGATE LIABILITY TO CLIENT FOR EVERY REASON UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF FEES AND COMPENSATION ACTUALLY PAID BY CLIENT TO RIGHTSCALE PURSUANT HERETO.

10. Indemnity

10.1 Indemnification by Client. Client will defend, indemnify, and hold harmless RightScale from and against any and all claims, losses, liabilities, damages, costs, and expenses (including attorneys' fees, expert witness fees, and court costs) based upon, resulting from or related to: (a) any improper, illegal, or unauthorized use of the RightScale Platform or any element thereof by Client or its Authorized Users; or (b) any breach of Client’s representations, warranties or covenants under this Agreement.

10.2 Indemnification by RightScale. RightScale will defend at its own expense any action against Client brought by a third party to the extent that the action is based upon a claim that the RightScale Platform directly infringes any U.S. patents, U.S. copyrights or misappropriates any trade secrets recognized as such under the Uniform Trade Secret law, and RightScale will pay (a) those costs and damages finally awarded against Client in any such action that are specifically attributable to such claim or (b) those costs and damages agreed to by RightScale in a monetary settlement of such action. If the RightScale Platform becomes, or in RightScale’s opinion is likely to become, the subject of an infringement claim, RightScale may, at its option and expense, either (i) procure for Client the right to continue using the RightScale Platform; (ii) replace or modify the RightScale Platform so that it becomes non-infringing and remains functionally equivalent; or (iii) suspend Client’s access to all or part of the RightScale Platform and give Client a refund for Fees paid in advance for any Service that thereby becomes unavailable to Client, less a pro-rata portion of such Fees for the time that Client has had access to the applicable Service.

10.3 Conditions to Indemnification. The foregoing obligations are conditioned on Client notifying RightScale promptly in writing of such action, Client giving RightScale sole control of the defense thereof and any related settlement negotiations, and Client cooperating with RightScale and, at RightScale’s request and expense, assisting in such defense.

10.4 Exceptions to RightScale Indemnification. Notwithstanding anything else set forth herein, RightScale will have no obligation under this Section 10 or otherwise with respect to any infringement claim based upon: (a) any use of the RightScale Platform not in accordance with this Agreement; (b) any use of the RightScale Platform in combination with other products, equipment, software, hardware data, or business processes not developed and supplied by RightScale; (c) any use of any release of the RightScale Platform other than the most current release made available to Client; (d) any modification of the RightScale Platform by any person other than RightScale or its authorized agents or subcontractors; (e) any use of the RightScale Platform for the benefit of a third party; or (f) any open source software or other software, technology, or materials received by RightScale from third parties and made available to Client hereunder. This Section 10 states RightScale’s entire liability and Client’s sole and exclusive remedy for infringement claims and actions.

11. Confidentiality; Publicity

11.1 Each party shall hold in confidence all information relating to the other party’s current or proposed products or services, technologies, strategies, finances, matters relating to either party’s relationship to investors, business partners, customers, other information of a similar nature not disclosed to the public. Both parties shall also hold the terms of this Agreement in confidence.

11.2 RightScale reserves the right to identify Client from time to time in its corporate communications, advertising and marketing materials by referring to this Agreement, using the appropriate logos, designations, trademarks, trade names, service marks, trade dress and logos, in accordance with Client’s then-current published guidelines.

12. Term & Termination

12.1 The Initial Term for each Purchased Service shall be set forth in the Order Form, provided that if no Term is stated in the Order Form then the Initial Term shall be one (1) year. Following completion of the Initial Term and any Renewal Term, this Agreement shall automatically renew for an additional one-year Term (“Renewal Term”), unless either party has terminated this Agreement by giving notice of termination to the other party at least thirty (30) days prior to the end of the then-current Term. The pricing applicable during any such Renewal Term shall be the same as that during the prior Term unless RightScale has provided Client written notice of a price increase at least sixty (60) days before the end of such prior Term, in which case the pricing increase shall be effective for the duration of the Renewal Term. Upon termination of this Agreement by Client or by RightScale, RightScale may retain any payments and the Client shall pay RightScale for any Fees owed up to the date of termination, together with all other amounts due hereunder. Any payments that have been received shall be credited against any such amounts due.

12.2 RightScale may suspend Client’s rights to use the RightScale Service (in whole or in part), and/or terminate this Agreement fifteen (15) days following RightScale’s provision of notice to Client, in accordance with the notice provisions set forth herein, if Client is in default of any payment obligation with respect to any of the RightScale Services or if any payment mechanism Client has provided to RightScale is invalid or charges are refused for such payment mechanism, and Client fails to cure such payment obligation default or correct such payment mechanism problem within such 15-day period.

12.3 RightScale may suspend or terminate Client’s access to the RightScale Service upon written notice in order to: (a) prevent damage to or degradation of, RightScale Platform; (b) comply with any law, regulation, court order, or other governmental request or order which requires immediate action; or (c) otherwise protect RightScale from potential legal liability If suspended, RightScale will promptly restore use of the Service to Client as soon as the event giving rise to the suspension has been resolved to RightScale's satisfaction.

12.4 If Client has purchased or paid for any Cloud Infrastructure Service through RightScale, the termination or suspension of a Service provided hereunder or this Agreement also may result in termination or suspension of Client’s Cloud Infrastructure Service. Client must make separate arrangement with the provider(s) of any Cloud Infrastructure Service to continue such service following suspension of a Service provided hereunder or termination of this Agreement.

12.5 The following Sections of this Agreement shall survive any expiration or termination of this Agreement: 1, 6, 7, 9-12, and 14-18.

13. Export Compliance.

The Services and other technology made available by RightScale and derivatives thereof may be subject to export and import laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Client shall not permit its Authorized Users to access or use any Service in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan and Syria) or in violation of any export or import law or regulation of any jurisdiction.

14. Dispute Resolution; Applicable Law

This Agreement shall be governed by the laws of the State of California, excluding its conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Client agrees that any claim or dispute Client may have against RightScale must be resolved by a federal or state court in California and Client hereby consents to the jurisdiction of such courts, The prevailing party in any dispute hereunder shall be entitled to recover from the other party its costs, expenses and reasonable attorneys’ fees (including any fees for expert witnesses, paralegals, in-house counsel, or other legal services providers).

15. Assignment

15.1 Neither Party will assign or transfer this Agreement without the other Party’s prior written consent, except that either Party may assign this Agreement upon notice and without the other Party’s consent to an entity (i) that controls, is controlled by or is under common control with the assigning Party or (ii) which purchases all or substantially all of its assets or stock; provided that in either case the assignee assumes all obligations and liabilities hereunder in writing prior to the effectiveness of such assignment.

15.2 In connection with any permitted assignment for which consent is not required pursuant to Section 15.1 above, Client shall have the right to merge and/or transfer an Account established by Client hereunder to the assignee's RightScale Account, and at its option terminate this Agreement, but only upon making the following payments to RightScale:

Subscription Fee: 100% of the monthly Subscription Fee multiplied by any remaining months of the initial Term set forth in the Registration Form; and
Usage Fees: 80% of the average usage-based fees billed to Client in the three (3) calendar months preceding the termination date, multiplied by any remaining months of the initial Term set forth in the Registration Form;
Third Party Fees: Any early termination fees or charges imposed by the third party provider of Cloud Compute Services or proprietary applications.

15.3 Any attempted assignment or Account transfer without the required consent or payment required in this Section 15 is void and is considered a material breach of this Agreement. Upon any permitted assignment, the assigning Party will remain jointly and severally responsible for the performance under this Agreement, unless released in writing by the other Party, and this Agreement will be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns.

16. Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party.

17. Notices. Notices made by RightScale under this Agreement for Client or Client’s Account specifically (e.g., notices of breach and/or suspension) will be provided to Client via the email address provided to RightScale in Client’s registration for the RightScale Platform or in any updated email address Client provides to RightScale in accordance with standard Account information update procedures RightScale may provide from time to time. It is Client’s responsibility to keep the email address current and Client will be deemed to have received any email sent to any such email address, upon RightScale sending of the email, whether or not Client actually receives the email. Notices made by Client to RightScale under this Agreement may be sent to: customercare@rightscale.com; or via fax: 1-805-456-6695.

18. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein no terms or conditions stated in a purchase order or other order documentation submitted by Client (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

RightScale, Master Subscription Agreement, Revised 2011-07-15

Cloud Management

Master Subscription Agreement