Terms of Use

1. This Terms of Use Agreement

(interchangeably, “Terms of Use” or “Terms of Use Agreement”) applies to all aspects of Users’ accessing, browsing, using, framing and/or linking to Masergy’s Web sites (“Sites”). Any person accessing, browsing, using, framing and/or linking to any of Masergy’s Sites in any way is a “User” for purposes of this Terms of Use Agreement and may be referred to as “User,” “Users” or “You” herein. By accessing, browsing, using, framing and/or linking to any of Masergy’s Sites, You acknowledge that You have read, understand, and agree to be bound by the provisions of this Terms of Use Agreement. IF YOU ARE DISSATISFIED AND/OR DO NOT AGREE TO THE PROVISIONS OF THIS TERMS OF USE AND ANY OR ALL OF ITS PROVISIONS, YOUR SOLE REMEDY IS TO DISCONTINUE YOUR USE OF MASERGY’S SITES.

2. Updates

a) This Terms of Use Agreement is subject to change. Any changes to this Terms of Use will be posted on Masergy’s Sites. All accessing, browsing, using, framing and/or linking to Masergy’s Sites is subject to the provisions of this Terms of Use, as amended.

b) The Materials (defined below) may include technical inaccuracies or typographical errors. Masergy may publish changes to the Materials at any time without notice. Masergy may also make improvements and/or changes in the products and services and/or the programs described in the Materials at any time without notice. Masergy shall have the right to revise these Materials at any time. By linking, accessing, browsing, and/or using Masergy’s Sites, You agree to be bound by any such revisions and should therefore periodically visit Masergy’s Sites.

3. Restrictions on Use of the Site and Its Content

a) Copying License. Subject to all of the provisions of this Terms of Use, Masergy hereby grants You a terminable, non-exclusive, non-transferable, personal, non- sublicenseable license to copy Masergy’s materials published on Masergy’s Sites (“Materials”) exclusively for non-commercial use by You personally or within Your organization (“Copying License”). The design and layout of any and all of Masergy’s Sites are specifically excluded from the Materials. No other use of the Materials is authorized under this Copying License. Any copy of the Materials (or any portion thereof) that You make must retain all copyright and other proprietary notices contained herein or therein. b) Limited License. Subject to all of the provisions of this Terms of Use, Masergy hereby grants You a terminable, non-exclusive, non-transferable, personal, non- sublicenseable license to access and use Masergy’s Sites (“Limited License”), and (pursuant to the Copying License) to download one copy of part or all of the Materials to a single computer solely for viewing and browsing purposes. All other uses of Masergy’s Sites, its software and the Materials, including, but not limited to modification, publication, transmission, participation in the transfer or sale of, reproduction, creation of derivative works from, distribution, performance, display, incorporation into another Web site, mirroring Masergy’s Sites or in any other way exploiting any of the Materials, in whole or in part, is not permitted under this Limited License and may violate one or more of Masergy’s or a third party’s intellectual property rights and is prohibited without Masergy’s prior express written consent. Except for this Limited License and the Copying License, nothing contained herein shall be construed as conferring to You in any manner, whether by implication, estoppel or otherwise, any license, title, or ownership of or to any intellectual property right of Masergy or any third party.

4. Termination of Usage

This Terms of Use Agreement shall remain in force until terminated by either You or Masergy. You may terminate this Terms of Use Agreement solely by discontinuing Your use of and access to Masergy’s Sites. Masergy may terminate this Terms of Use Agreement, or suspend Your access to all or part of Masergy’s Sites, without notice, for any conduct that Masergy, in Masergy’s sole discretion, believes is disruptive to Masergy’s Sites, is in violation of any applicable law or is in violation of this Terms of Use.

5. Notices

a) Trademark and Copyright Notices. “Masergy Communications, Inc.,” “Masergy,” “Masergy UK Limited”, and the Masergy logo are trademarks, services marks, and/or trade names Masergy, are proprietary to Masergy, and may not be used in connection with any product or service that is not Masergy’s in any manner that is likely to cause confusion among customers or in any manner that disparages or discredits us. All other trademarks, product names, company names and logos are the property of their respective owners.

b) California Legal Notice. Californians have rights to the following information pursuant to California Civil Code Section 1789.3 and California Business and Professions Code Section 17538. Masergy Communications, Inc., located at 2740 North Dallas Parkway, Suite 260, Plano, Texas 75093, is the provider of the electronic commercial service on Masergy’s Sites.

i) Currently there are no charges to the consumer imposed by Masergy for use of Masergy’s Sites. Masergy reserves the right to change its pricing and to begin charging for use of all or any portion of Masergy’s Sites.

ii) The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in California may be contacted in writing at 400 R. Street, Suite 3090, Sacramento, CA 95814 or by calling 1-800-952-5210.

6. Communications with Masergy

Masergy welcomes Your comments and feedback regarding Masergy’s Sites and its services; however, Masergy does not want and cannot accept any ideas, suggestions and other similar submissions disclosed, submitted or offered to Masergy using Masergy’s Sites or otherwise which You consider to be confidential or proprietary. Accordingly, all comments, feedback, ideas, suggestions and other similar submissions disclosed, submitted or offered to Masergy using Masergy’s Sites or otherwise (collectively, “Submissions”) are not confidential and become and remain the property of Masergy. Subject to the parameters and restrictions set forth in Masergy’s Online Privacy Policy, Masergy is under no obligation to refrain from and is entitled to use, display, publish, reproduce, modify, transmit, sublicense, translate, create derivative works from and distribute Submissions in any medium and through any method of distribution, transmission or display for any purpose whatsoever, commercial or otherwise, without compensation or any other obligation to the provider of the Submissions. You hereby give Masergy Your consent to use Your personal data consistent with Masergy’s Online Privacy Policy.

7. Copyright Infringement Notification

Masergy respects the intellectual property of others and asks its content partners and those posting to Masergy Sites to do the same. Masergy’s network may not be used to transmit, retransmit, distribute, post, or store any material that is in violation of any rights of any person including rights protected by copyright, trade secret, patent, or other intellectual property or similar laws or regulations. Please see Comcast’s Digital Millennium Copyright Act (DMCA) Policy, which is available at https://www.xfinity.com/dmca, for a description of the procedures to follow if You believe that Your copyrighted work has been copied and is accessible on any of Masergy’s Sites in a way that constitutes copyright infringement. i) Please note that any person who knowingly misrepresents to Masergy that material is infringing shall be liable to Masergy and/or the alleged infringer for any damages (including costs and attorneys’ fees) suffered or incurred by Masergy and/or the alleged infringer as a result of Masergy’s relying on such misrepresentation and removing or disabling access to such material. ii) Similarly, any person who knowingly misrepresents to Masergy that the material was removed or access blocked by mistake or misidentification shall be liable to Masergy and/or the copyright owner or its authorized licensee for any damages (including costs and attorneys’ fees) suffered or incurred by Masergy and/or the copyright owner or its authorized licensee as a result of Masergy’s relying on such misrepresentation and replacing such removed or blocked material. Masergy’s designated DMCA agent for notices of copyright infringement is: DMCA Notifications, Comcast Cable Communications, LLC, 1800 Bishops Gate Boulevard, Mt. Laurel, NJ 08054, Phone: 877-842-2112, Email: [email protected].

8. Links

a) Masergy’s Sites may provide links or references to other sites, including sites provided by the United States government. Masergy has no responsibility for the content of these other sites, does not make any representations or give any warranties with respect to any information contained in or at these other sites, and shall not be liable for any damages or injury arising from the content of these other sites. Masergy does not endorse companies or products to which it has provided links. Any links to other sites are provided merely as a convenience to Users and, if You decide to access any of the third party sites linked to Masergy’s Sites, You do so entirely at Your own risk. Masergy reserves the right to terminate any link or linking program at any time. You acknowledge that Masergy’s Sites may link to other Web sites not controlled by Masergy and that Masergy is not responsible for the data collection policies of these sites. b) There may be circumstances where access to Masergy’s Sites is provided by a hypertext link located at another Web site. Masergy does not make any representations or give any warranties with respect to any information contained in or at these other sites and Masergy shall not be liable for any damages or injury arising from the content of these other sites. Masergy does not endorse the individuals, companies or other similar entities, or any products or materials associated with such individuals, companies or other similar entities, which provide a link to Masergy’s Sites at their Web sites. Unless approved in writing in advance by Masergy, You agree not to: (a) provide or create a link to Masergy’s Sites; and/or (b) create any frames at any other Web sites pertaining to any of the Materials. Please contact Masergy to seek approval for linking to Masergy’s Sites.

9. Products and Services Availability

Masergy is a service provider operating in some, but not all, markets within the U.S. and may provide access to international information, which information may contain references or cross references to products, programs, and services that are not currently available in Your country. Masergy’s provision of references to such products, programs, and services does not necessarily mean or otherwise imply that the products, programs, and services announced or discussed are available in countries other than the United States. Therefore, Masergy may provide access to information that may contain references or cross references to products, programs, and services that are not announced or available in all U.S. markets or all markets where Masergy conducts business.

10. Disclaimers

a) The Materials have been compiled by Masergy from internal and external sources. While Masergy has attempted to provide accurate information on Masergy’s Sites, no representation is made or warranty given as to the completeness or accuracy of the Materials. In particular, You should be aware that the Materials may be incomplete, may contain errors, or may have become out of date. You should therefore verify information obtained from Masergy’s Sites before You take any action upon it. No advice or information, whether oral or written, obtained by You from Masergy, shall create any warranty not expressly made herein.

b) MASERGY’S SITES ARE PROVIDED ON AN “AS-IS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, MASERGY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION, ACCESSIBILITY OR SECURITY OF THIS SITE, AND THE ACCURACY, COMPLETENESS, CURRENCY OR RELIABILITY OF ANY OF THE CONTENT OR DATA FOUND ON THIS SITE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. MASERGY DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO ITS SERVICES EXCEPT AS PROVIDED IN ANY APPLICABLE SLA, AND OPERATION OF MASERGY’S SITES MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF MASERGY’S CONTROL.

11. Indemnity

You agree to indemnify, defend, and hold Masergy and Masergy’s subsidiaries, affiliates, officers, directors, agents and employees harmless from any claim or demand, including attorneys’ fees, made by any third party due to or arising out of Your breach of these Terms of Use or Your violation of any law or the rights of a third party.

12. Limitation of Liability

a) Masergy periodically schedules system downtime for maintenance and other purposes. Unplanned system outages also may occur. Masergy shall have no liability whatsoever for the resulting unavailability of the Site or for any loss of data or transactions caused by planned or unplanned system outages or the resulting delay, mis-delivery, or non-delivery of data or other information caused by such system outages, or any third party acts or any other outages of Web host providers or the Internet infrastructure and network external to Masergy’s Sites.

b) MASERGY ASSUMES NO RESPONSIBILITY, AND IN NO EVENT SHALL MASERGY BE LIABLE FOR, ANY INJURY, LOSS, CLAIM, DAMAGE, LOST PROFITS OR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS TO, OR INABILITY TO ACCESS, THE SITES, OR FROM YOUR RELIANCE ON ANY INFORMATION PROVIDED ON THE SITES, EVEN IF MASERGY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

13. General

a) Applicable Law

i) You hereby acknowledge and agree that Masergy’s Terms of Use, Masergy’s Online Privacy Policy, and Your access to and use of Masergy’s Sites are governed by U.S. Federal Law and/or the laws of the State of Texas, and that any legal action or proceeding relating to Masergy’s Terms of Use, Masergy’s Online Privacy Policy, and Your access to and use of Masergy’s Sites shall be instituted only in a state or federal court located in Dallas County, Texas, U.S.A. You and Masergy hereby irrevocably agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding.

ii) All information available at Masergy’s Sites is subject to U.S. export control laws and may also be subject to the laws of the country where You reside. All Masergy products and publications are commercial in nature. Any Materials copied or downloaded from Masergy’s Sites for or on behalf of the United States of America, its agencies and or instrumentalities (“U.S. Government”), is provided with restricted rights. Use, duplication, or disclosure by the U.S. Government is subject to the restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable.

b) Severability. If any provision of this Terms of Use is found by a court to be unlawful, invalid or unenforceable, the parties agree that the court shall amend that provision to achieve as nearly as possible the same effect as the original provision and the remainder of these Terms of Use will remain in full force.

c) Waiver. No delay or omission by Masergy to exercise any right occurring upon any noncompliance on Your part with respect to any of the terms of this Terms of Use shall impair any such right or power or be construed to be a waiver thereof. Any waiver by Masergy of any of the covenants, conditions, or agreements to be performed by You shall not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition, or agreement herein contained.