Subscription Agreement (the “Agreement”) is made and entered into on the last signature date on the Order Form (the “Effective Date”) by and between Harmonic (defined below) and the company identified on the Order Form (“Customer”). 

‍DEFINITIONS.  Capitalized terms shall have the meanings set forth in this section or in the section where they are first used.

“Affiliates” means a parent, subsidiary or other entity which controls the party or which the party controls or which is under common control with the party. For purposes hereof, control means direct or indirect ownership of more than fifty percent (50%) of the voting interest.

"Aggregated and Anonymized Research Data” means data, statistics, metrics, analyses, or insights derived from Customer Content, Operational Usage Data, or use of the Service, only in aggregated and anonymized form, such that no Customer, Authorized User, or individual is identified or reasonably identifiable; and such data cannot be reverse-engineered to identify Customer or its Confidential Information.

“API” means the set of protocols, routines, functions, and tools, including a Model Context Protocol ("MCP") gateway provided by Harmonic that allows software applications to communicate or to instruct or exchange data with or access the features of the Service.  

‍“Authorized AI Agent” means those automated systems that act independently without human review to initiate actions or respond to electronic records as may be authorized by the Customer to access the Service pursuant to Customer’s rights under this Agreement.

‍“Authorized User” means any individual who is an employee or independent contractor or consultant of Customer, or Customer Affiliate’s employee, contractor, or consultant, or such other individual as may be authorized by the Customer to access the Service pursuant to Customer’s rights under this Agreement.

“Customer Content” means the (a) Traffic Intercept Agent Data, (b) the Inputs, and (c) the Outputs 

“Documentation” means then-current online user guides, documentation, and help and training materials, if any, in either physical or electronic form, or other documentation provided in writing to Customer by an authorized representative of Harmonic.

“Harmonic” means (a) if Customer is located in the Americas or any other location than identified below, then Harmonic Security, Inc., 1390 Market Street Suite 200, San Francisco, California, 94102, United States; or (b) if Customer is located in the United Kingdom, then Harmonic Security Limited, 71-75 Shelton Street Covent Garden, London, United Kingdom. WC2H 9JQ.

“Endpoint Agent” means the Harmonic provided lightweight software component installed on endpoint devices that enables the functionality of the Service by observing specified device and data events. The Endpoint Agent performs no functions other than those expressly described in the Traffic Intercept Agent definition and does not modify system configurations except as necessary to operate.

“Inputs” means the Customer’s prompts, inquiries, and inputs, including, without limitation, any Traffic Intercept Agent Data.

“Insights” means insights, learnings, trends or other analytics based on Customer Content that are generated through the Service by or for Customer. 

“MCP Gateway” means the secure, managed, and centralized gateway service provided by Harmonic, which facilitates the connection, authentication, authorization, and policy enforcement of Authorized AI Agents utilizing the Model Context Protocol (“MCP”) to access various MCP-enabled servers, tools, and resources.

“Operational Usage Data” means the data relating to Customer's and its Users' interaction with the Service (such as pages visited, actions taken, feedback submitted, performance indicators, and diagnostic logs) that Harmonic requires to operate, support, secure, design and improve the Service for Customer. Operational Usage Data may be associated with specific Users solely for these purposes and is not used for marketing, benchmarking, profiling, or any purpose unrelated to Customer's use of the Service For the avoidance of doubt, Operational Usage Data does not include any Customer Content, Inputs or any of the Customer’s Confidential Information.  Operational Usage Data is used exclusively by Harmonic and no other party. 

“Order Form” means Harmonic’s standard order form executed by both parties that references this Agreement.

“Outputs” means, excluding Operational Usage Data, any reports, data sets, documents, analyses, visualizations, Insights, calculations or other materials generated by or through the use of the Service by Customer or any Authorized User during the Term in response to Inputs. 

“Personal Data” has the meaning set forth in the Data Processing Addendum (“DPA”).

“Service” means (1) the Solution, (2) the Traffic Intercept Agent, (3) the API, (4) the Endpoint Agent (5) the MCP Gateway and (6)) any other related services provided by Harmonic to Customer under this Agreement. 

“Solution” means Harmonic’s cloud-based solution, designed to offer enterprises visibility into their use of artificial intelligence and other online SaaS applications and/or services by identifying relevant risks, including risks of potentially sensitive data loss in the communications and content interchange with those applications and/or services.]

“Traffic Intercept Agent” means the technology (which may be a browser extension, an Endpoint Agent or a MCP Gateway) which is downloaded, installed (or have installed) by Customer, supplied by Harmonic, to collect, read and process any Authorized User’s interactions with applications and/or services.

“Traffic Intercept Agent Data” means the data collected through the use of the Traffic Intercept Agent by or on behalf of the Customer or any of its Authorized Users.

‍SERVICE RIGHTS AND RESTRICTIONS.

License Grants.

License to Solution. Subject to the terms and conditions of this Agreement, Harmonic grants to Customer a non-exclusive, worldwide, non-transferable (except as specified herein), non-sublicensable license during the Term (as defined below), solely for its Authorized Users, in accordance with the Documentation to: (a) access and use the features and functions of the Solution; and (b) access, use, store, print and copy the Documentation; in each case solely for its internal business purposes.  Customer shall be responsible for acts or omissions of its Authorized Users in their access to and use of the Solution.

‍License to Traffic Intercept Agent. A subscription to the Service also includes the Traffic Intercept Agent for use with the Solution. Harmonic grants to Customer a non-exclusive, worldwide, non-transferable (except as specified herein), non-sublicensable license during the Term (as defined below) for Authorized Users, in accordance with the terms of the Agreement and Documentation, to download, install (or have installed) on a browser, as an Endpoint Agent or as an MCP Gateway, and use the Traffic Intercept Agent solely in conjunction with its access and use of the Solution.

‍License to API, Endpoint Agent and MCP Gateway. Subject to the terms and conditions of this Agreement, Harmonic grants to Customer a non-exclusive, worldwide, non-transferable (except as specified herein), non-sublicensable license during the Term (as defined below), in accordance with Documentation, to access and use the API and, or the Endpoint Agent and, or the MCP Gateway solely to interface with and allow Authorized Users or Authorized AI Agents to access the Service.

‍Personal Data. The parties agree that each party will comply with their respective obligations under the Data Processing Addendum, available at https://www.harmonic.security/r/dpa, as may be updated from time to time (“DPA”), which is incorporated into and forms a part of this Agreement. To the extent that the Customer Content contains Personal Data, Harmonic shall treat such Personal Data in accordance with the DPA. Harmonic will not use Customer Content to train any AI models. 

‍Restrictions.   Except as may be expressly permitted by applicable law, Customer agrees that it will not, and will not permit any Authorized User or other party to: (a) permit any party to access the Service, other than the Authorized Users to; (b) modify, adapt, alter or translate the Service, except as expressly allowed herein; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer (except as specified herein) the Service to any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Service; or (e) use or copy the Service except as expressly allowed under this Agreement.  Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Service or any part thereof.  Customer agrees that Customer Content and the use of Customer Content as provided by Customer and contemplated by this Agreement will not: (1) infringe, violate, or misappropriate any third-party right, including any intellectual property right; (2) slander, defame, libel, or invade the right of privacy, publicity, or other property rights of any other person; (3) violate, or cause Harmonic to violate, any law or regulation; (4) be deceptive, obscene, pornographic, or unlawful; or (5) contain any viruses, worms, or other malicious computer programming codes intended to damage Harmonic’s system or data. Each party shall always comply with all international and domestic laws, ordinances, regulations, mobile carrier policies, industry rules, and statutes that are applicable to its access to or use of the Service hereunder. Harmonic reserves the right (in addition to any other rights or remedies Harmonic may have) to temporarily suspend all Authorized Users’ and Customer’s access to the Service if Harmonic reasonably determines there has been a material violation of this section 2.3 or a security breach caused by Customer and after consultation with Customer, terminate such access if appropriate. 

‍Data and Security.  Harmonic will be responsible, during the Term, for hosting, maintaining, and operating the Service (including the web portal through which Customer may access the Service); and the Customer will be responsible for providing its own web browser software, computers and other client browsing devices, and Internet access. Customer shall be responsible for all changes to and/or deletions of Customer Content by Customer and the security of all passwords required in order to access the Service.  Harmonic has no responsibility or liability for the deletion or accuracy of any Customer Content as provided by Customer.  Certain features may enable Customer or its Authorized Users to specify the level at which the Solution restricts access to Customer Content.  Customer and its Authorized Users are solely responsible for applying the appropriate level of access to Customer Content.

‍Use of Third-Party Software.  The Service may leverage certain third-party software (“Third-Party Software”) that enables the Solution to generate Outputs in response to the Inputs. The Third-Party Software may leverage third-party artificial intelligence algorithms and platforms to assist in tuning the Models (as defined below) to optimize the Outputs delivered to the Customer.  Without limiting the disclaimers in Section 5.2 below and because the Service assists with risk identification and decision support and does not replace human judgment or professional advice the Customer is responsible for reviewing any Output prior to its use and exercising its own business and legal judgement as to its suitability for use. Harmonic will not share Input with any external third parties without Customer’s consent excluding those sub-processors approved in the DPA.

‍OWNERSHIP RIGHTS.  The Service, including all enhancements, modifications, and improvements thereto, the Operational Usage Data, the Harmonic Confidential Information, and all worldwide intellectual property rights in each of the foregoing, is the exclusive property of Harmonic and its suppliers.  All rights in and to the Service not expressly granted to the Customer in this Agreement are reserved by Harmonic and its suppliers.  Customer owns all right, title and interest in and to Customer Content and is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content.  Customer will obtain all third-party licenses, consents and permissions needed for Harmonic to use the Customer Content to provide the Service.  Subject to the terms of this Agreement, Customer grants Harmonic a non-exclusive, worldwide, royalty-free and fully paid license during the Term to use the Customer Content as necessary for purposes of providing and/or improving the Service. All rights in and to the Customer Content not expressly granted to Harmonic in this Agreement are reserved by the Customer. As between Harmonic and Customer, all right, title, and interest in the Operational Usage Data, and all intellectual property rights therein, belong to and are retained solely by Harmonic. Customer acknowledges that Harmonic may compile such data and may use such data to optimize the Service through its use of artificial intelligence algorithms and models (collectively, “Models”); [provided, however, that Harmonic will not use Customer Content to train its Models. All rights, title, and interest in and to the Models are retained by Harmonic. Notwithstanding anything to the contrary in this Agreement, Customer agrees that Harmonic may use Aggregated and Anonymized Research Data to develop, publish, and distribute industry research, reports, benchmarks, and thought-leadership materials, provided that such materials: (a) do not identify Customer or any Authorized User; or (b) do not disclose Customer Confidential Information; and
(c) are presented solely in aggregated and anonymized form.  Customer hereby assigns to Harmonic any suggestions, ideas, enhancement requests, feedback or recommendations, or other information provided by Customer or its Authorized Users related to the Service (collectively, “Feedback”), provided that such Feedback shall: (a) not include Customer's Confidential Information; or (b) be provided by Customer as-is without any warranty of any kind.

‍FEES; PAYMENT TERMS.

Fees. Customer will pay Harmonic the fees as determined under any Order Form (“Fees”). All Fees are billed annually in advance of the start of the applicable subscription, unless otherwise stated in an Order Form.

‍Payment Terms.  Except as otherwise provided in an Order Form, all Fees are due and payable within thirty (30) days of the date of the invoice. Harmonic reserves the right to modify the Fees payable hereunder for any renewal term upon written notice to Customer at least thirty (30) days prior to the end of the then-current term.  Harmonic reserves the right (in addition to any other rights or remedies Harmonic may have) to suspend all Authorized Users’ and Customer’s access to the Service if any Fees are more than thirty (30) days past the invoice due date until such amounts are paid in full. Any amounts not paid when due will bear interest at the rate of one and one-half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.  Subscriptions purchased and payment obligations are non-cancelable, and, except as expressly set forth herein, Fees paid are non-refundable.

‍Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import payments, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Harmonic’s income), tariffs, duties, assessments and other charges and any related penalties and interest arising from the payment of the Fees, the provision of the Service, or the license of the Harmonic  Solution to Customer. Customer will make all payments of Fees to Harmonic free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Harmonic will be Customer’s sole responsibility, and Customer will provide Harmonic with official receipts issued by the appropriate taxing authority, or such other evidence as Harmonic may reasonably request, to establish that such taxes have been paid. 

‍WARRANTIES AND DISCLAIMERS. 

Mutual Representations and Warranties. Each party represents and warrants to the other that: (1) this Agreement has been duly executed and delivered and constitutes a binding agreement enforceable against the executing party in accordance with its terms; (2) no authorization or approval from any third party is required in connection with the execution, delivery, or performance of this Agreement by the executing party; (3) the execution, delivery, and performance of this Agreement by the executing party do not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound; and (4) each party will comply with all applicable laws, rules and regulations in connection with this Agreement. Harmonic represents and warrants that (a) it has all necessary rights, licenses, consents, and authority necessary to grant the rights expressly granted Customer under this Agreement; (b) it will perform the Service in a professional and workmanlike manner, consistent with industry standards; and (c) the Service does not knowingly contain any malicious code, viruses, worms, backdoors, time bombs, ransomware, spyware, adware, trojan horses or similar items.

‍Disclaimers. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS SECTION, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HARMONIC SPECIFICALLY DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY, ACCURACY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE SERVICE WITHOUT LIMITING THE FOREGOING, HARMONIC DOES NOT WARRANT THAT THE SERVICE (INCLUDING ANY API, ENDPOINT AGENTS, MCP GATEWAY, BE ERROR-FREE OR DEFECT-FREE, OR OPERATE WITHOUT INTERRUPTION.OR THE DOCUMENTATION OR DATA GENERATED OR PROCESSED IN CONNECTION THEREWITH WILL SATISFY CUSTOMER’S REQUIREMENTS. 

‍Third-Party Software. THE THIRD-PARTY SOFTWARE IS INTENDED ONLY FOR USE IN GENERATING OR OPTIMIZING THE OUTPUTS, AND ANY SUCH OUTPUTS DO NOT CONSTITUTE MEDICAL, LEGAL, ACCOUNTING, OR OTHER ADVICE OF A CERTIFIED OR QUALIFIED PROFESSIONAL, AND HARMONIC MAKES NO WARRANTY OR GUARANTEE THAT THE SERVICE WILL PROVIDE ACCURATE, TAILORED, OR INFORMATIVE INSIGHTS OR INSIGHTS THAT ARE FIT FOR THE PARTICULAR PURPOSE OR USE CASE. HARMONIC DOES NOT REPRESENT OR WARRANT THAT THE CUSTOMER IS THE LEGAL OWNER OF THE OUTPUTS, OR THAT THE OUTPUTS ARE PROTECTABLE BY ANY INTELLECTUAL PROPERTY RIGHTS, OR THAT THE OUTPUTS DO NOT INCORPORATE, INFRINGE OR MISAPPROPRIATE THE INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OF ANY THIRD PARTY. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR CUSTOMER’S USE OF THE OUTPUTS (INCLUDING ANY INSIGHTS), AND SHALL USE SUCH OUTPUTS AT ITS OWN RISK. THE CUSTOMER SHOULD EVALUATE THE FITNESS OF ANY INSIGHTS AS APPROPRIATE FOR THE CUSTOMER’S SPECIFIC USE CASE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF WARRANTIES. THIS SECTION WILL APPLY TO THE CUSTOMER SOLELY TO THE EXTENT PERMITTED BY APPLICABLE LAW. 

‍LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS, A PARTY’S FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR MISAPPROPRIATION BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE ARISING OUT OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO DAMAGES OR COSTS DUE TO LOSS OF PROFITS, BUSINESS INTERRUPTION, OR PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES, AND (B) EACH PARTY’S TOTAL LIABILITY UNDER THIS AGREEMENT, INCLUDING ALL ORDERS, SHALL NOT EXCEED THE FEES ACTUALLY PAID OR PAYABLE BY THE CUSTOMER TO HARMONIC IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM OF LIABILITY.  The parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy.  The parties acknowledge that they have each entered into this Agreement in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties. 

‍CONFIDENTIALITY.  “Confidential Information” means: (i) any and all proprietary, financial, business, legal and technical information or trade secrets of the disclosing party, including, without limitation, product plans, designs, source code, marketing plans, business opportunities, customers (whether current, past or prospective), strategies, processes, suppliers, personnel, research, development or know-how related to the disclosing party’s business; or (ii) information designated by the disclosing party as “confidential” or “proprietary” or whether or not so designated which, under the circumstances taken as a whole, would reasonably be deemed to be confidential, all disclosed prior to or during the Term of the Agreement. Confidential Information shall not include information that (i) is or becomes generally available to the public other than as a result of wrongful disclosure by the receiving party; (ii) is or becomes available to the receiving party on a non-confidential basis from a third party that rightfully possesses the Confidential Information and has the legal right to make such disclosure; or (iii) is developed independently by the receiving party without access to or use of any of the disclosing party’s Confidential Information and by persons without access to such Confidential Information. The receiving party shall not use the disclosing party’s Confidential Information for any purpose other than the purposes of exercising such party’s rights or performing such party’s obligations under the Agreement. During the Term and for a period of three (3) years after termination or expiration of this agreement, except for Trade Secret which will survive in perpetuity thereafter, the receiving party shall: (a) hold secret and confidential any and all such Confidential Information of the disclosing party; (b) not disseminate, or in any way disclose or allow access to, any such Confidential Information to any person, entity or governmental agency or department, except to the extent expressly permitted under this Agreement; (c) protect all such Confidential Information by exercising at least the same degree of care it uses to protect its own information of like importance from unauthorized use or disclosure, but in no event less than a reasonable and customary degree of care for information of such nature; (d) not copy, reproduce or duplicate such Confidential Information except to the extent required to fulfill the receiving party’s obligations under this Agreement; (e) give immediate notice to the disclosing party of any loss or unauthorized use, appropriation, access to or disclosure of such Confidential Information and reasonably assist the disclosing party in mitigating and remedying the unauthorized use or disclosure of such Confidential Information; and (f) take all reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or use of the disclosing party's Confidential Information.  Without limiting the foregoing, the receiving party shall not  disclose the disclosing party’s Confidential Information to any third party without the prior written consent of the disclosing party, except in the following circumstances: (1) to its employees, personnel, agents, or contractors (collectively, its “Representatives”) who have a need to know such information, and only to the extent necessary, for the purposes of exercising such party’s rights or performing such party’s obligations under the Agreement and who are bound by written obligations of confidentiality and non-use at least as restrictive as those contained in the Agreement.  The receiving party may disclose Confidential Information of the disclosing party if required to do so under applicable law, rule, or order, provided that the receiving party gives the disclosing party prompt written notice of such requirement (unless expressly prohibited in writing in such subpoena, court order, or other legal process) prior to such disclosure and takes reasonable steps to protect the Confidential Information from public disclosure, and provided further that any such disclosure is limited to the minimum extent necessary to comply with the legal requirement. All Confidential Information will remain the disclosing party’s property, and all documents, electronic media, and other tangible items or portions thereof which contain Confidential Information of the disclosing party will be delivered to the disclosing party promptly upon the expiration or termination of this Agreement or upon the disclosing party’s written request.

‍INDEMNIFICATION.

By Harmonic.  Harmonic will indemnify, defend and hold harmless, at its own expense, Customer, its Affiliates and its and their respective directors, officers, agents and employees from and against any and all actual or threatened third-party claims, demands, actions, proceedings, or suits (each, a “Claim”), and pay all liabilities, losses, damages, costs, and other expenses (including attorneys’ and expert witnesses’ costs and fees), to the extent arising from or relating to any allegation that the Solution infringes, misappropriates or otherwise violates a third party’s patents, copyrights, trademarks, or trade secret rights under the applicable laws of any jurisdiction in which a party to this Agreement resides.  If any portion of the Solution becomes, or in Harmonic’s opinion is likely to become, the subject of a claim of infringement, Harmonic may, at Harmonic’s option: (a) procure for Customer the right to continue using the Solution; (b) replace the Solution with non-infringing software or services that do not materially impair the functionality of the Solution; (c) modify the Solution so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Solution. Notwithstanding the foregoing, Harmonic will have no obligation under this section or otherwise with respect to any infringement claim based upon: (i) any use of the Solution not in accordance with this Agreement; (ii) any use of the Solution in combination with other products, equipment, software, or data not supplied or specifically approved by Harmonic; or (iii) any modification of the Solution by any person other than Harmonic or its authorized agents (collectively, the “Exclusions” and each, an “Exclusion”). This section states the sole and exclusive remedy of Customer and the entire liability of Harmonic, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.

‍By Customer.  Customer will indemnify, defend and hold harmless, at its own expense, Harmonic and its Affiliates and its and their respective employees, directors, officers, and agents from and against any and all Claims, and pay all liabilities, losses, damages, costs and other expenses (including attorneys’ and expert witnesses’ costs and fees) arising out of or relating to: (i) an Exclusion; (ii) any allegation that the Customer Content infringes, misappropriates or otherwise violates a third party’s intellectual property rights; and/or (iii) Customer’s breach of Section 2.3 (Restrictions).

‍Procedure.  The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the following: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit. The indemnified party shall not agree to settle any such claim without the indemnifying party’s express prior written consent. The indemnified party may participate in the defense of the Claim at its own expense and with counsel of its own choosing, but the indemnifying party will have sole control over the defense of the Claim.

‍TERM AND TERMINATION. 

Term. The term of this Agreement will commence on the Effective Date and continue in full force and effect for as long as any such Order Form remains in effect, unless earlier terminated in accordance with this Agreement (the “Term”).  

‍Termination. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement and such breach is incapable of remedy or materially breaches this Agreement and such breach is capable of remedy and remains uncured more than thirty (30) days after receipt of written notice of such breach. Following the Initial Term, either party may terminate this Agreement upon thirty (30) days’ written notice to the other party. In the event of such termination for cause by Customer, Harmonic shall refund any unused prepaid fees for the remainder of the term then in effect. There is no refund for any prepaid Fees if the Customer terminates the Agreement for convenience.

‍Effect of Termination; Survival. Upon termination or expiration of this Agreement: (a) all licenses granted hereunder will immediately terminate; (b) promptly after the effective date of termination or expiration, each party will delete or destroy all copies of the other party’s Confidential Information in its possession or control; (c) Customer will be provided 30 days post termination the opportunity to export relevant data; and (d) any amounts owed to Harmonic under this Agreement will become immediately due and payable except as set out in section 9.2 above. Any provision of this Agreement that by its nature extends beyond the expiration or termination of this Agreement, including, for the avoidance of doubt and without limitation, Sections 1 (Definitions), 2.2 (Personal Data), 2.3 (Restrictions), 2.5 (Third-Party Software), 3 (Ownership Rights), 4 (Fees; Payment Terms), 5 (Warranties and Disclaimers), 6 (Limitation of Liability), 7 (Confidentiality), 8 (Indemnification), 9.3 (Effect of Termination; Survival), and 10 (Miscellaneous) and such other provisions that by their nature are intended to survive termination will survive the termination or expiration of this Agreement.

‍MISCELLANEOUS. The parties are independent contractors. Upon Customer’s prior written approval (email to suffice), Harmonic may use Customer’s name in any routine list of Harmonic clients and as a reference. Each party must deliver all notices or other communications required or permitted under this Agreement in writing to the other party at the address listed below, by courier, by registered or certified mail (postage prepaid and return receipt requested), by email (return receipt requested), or by a nationally recognized express-mail service.  Notice will be effective upon receipt or refusal of delivery.  Neither party may assign this Agreement without the written consent of the other party. Any purported assignment in violation of the foregoing shall be null and void.  This Agreement shall be governed in all respects by California law, excluding any conflict of laws principles that would require the application of the laws of another jurisdiction.  The parties hereby submit to the personal jurisdiction of the state and federal courts in San Francisco County, California. For Harmonic Security Limited Customers, this Agreement shall be governed in all respects by the laws and courts of England, excluding any conflict of laws principles that would require the application of the laws of another jurisdiction, and the parties hereby submit to the personal jurisdiction of the courts in London, England. The parties agree that all communications and disputes will be in the English language only. If any provision of this Agreement is held to be invalid or unenforceable by any court of competent jurisdiction, such provision will be deemed modified so as to be valid and enforceable to the greatest extent possible under applicable law, and the validity of the remaining provisions hereof shall not be affected thereby.  Customer agrees that it will not assist with or participate in any export or re-export of the Solution or associated Documentation in violation of applicable laws or regulations.  No amendment to, or waiver of rights under, this Agreement shall be effective unless in a writing signed by authorized representatives of each party.  This Agreement, which includes and incorporates any Order Forms, exhibits or other addenda, constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements, understandings, and communications, whether written or oral, including, without limitation, any click-through or browser-wrap end-user license agreements or other types of agreements that require an action or agreement by the user of the Harmonic’s website portal before the use of the Service.  This Agreement may be executed in multiple counterparts (including by Docusign), which will constitute one document.

By signing the Order Form, the parties have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date.