1. burnslev.com © 2013 Burns & Levinson LLP Allocating and Mitigating Contractual Risk ACC – NE Corporate Counsel Institute June 12, 2013 Alan M. Block, John Hancock Financial Services Josef B. Volman, Burns & Levinson LLP Robert D. Friedman, Burns & Levinson LLP Andrew W. Feinberg, Brightcove Inc.

2. Allocating and Mitigating Contractual Risk Panelists Alan M. Block, Vice President and Counsel, John Hancock Financial Services Andrew W. Feinberg, Chief Legal Officer and Executive Vice President, Brightcove Inc. Robert D. Friedman, Partner and Co-Chairman of Business Litigation Group, Burns & Levinson LLP Josef B. Volman, Partner and Co-Chairman of Business Law Group, Burns & Levinson LLP 1

3. Topics to be Covered Representations and Warranties Indemnity Provisions including Limitation of Liability and Duty to Defend Insurance Provisions 2

4. I. Representations and Warranties Define and Allocate Risk Provide Disclosure Due Diligence 3

5. Due Authority The execution and delivery by Vendor of this Agreement and the performance by Vendor of its obligations hereunder have been duly authorized by all requisite corporate action on the part of Vendor. This Agreement has been duly executed and delivered by Vendor, and this Agreement constitutes a legal, valid and binding obligation of Vendor enforceable against Vendor in accordance with its terms. 4

6. Non-Contravention No Conflicts: Consents. The execution, delivery and performance by Vendor of this Agreement do not and will not: (a) conflict with or result in a violation or breach of, or default under, any provision of the certificate of incorporation, by- laws or other organizational documents of Vendor; (b) conflict with or result in a material violation or breach of any provision of any Law or Governmental Order applicable to Vendor; (c) require the consent, notice or other action by any Person under, conflict with, result in a violation or breach of, constitute a default or an event that, with or without notice or lapse of time or both, would constitute a default under, result in the acceleration of or create in any party the right to accelerate, terminate, modify or cancel any Contract or Permit to which Vendor is a party or except in each case where that which would not have a material adverse effect. No consent, approval, Permit, Governmental Order, declaration or filing with, or notice to, any Governmental Authority is required in connection with the execution and delivery of this Agreement. 5

7. Standard of Performance All Services and Products shall be produced and performed in material compliance with and conform in all material respects to all applicable laws, regulations, standards, rules and orders of all applicable federal, state, local, and municipal governmental authorities, whether domestic or foreign. 6

8. IP/Software Representations EXCEPT AS OTHERWISE EXPRESSLY PROVIDED BELOW, THE SOFTWARE CODE IS LICENSED "AS IS". SELLER MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SOFTWARE CODE, AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Consultant represents and warrants that: the Software Code provided pursuant to this Agreement do not and shall not violate any applicable law, rule or regulation, nor any contracts with third parties; and to Consultant’s knowledge, the Software Code does not and shall not violate any third party rights in any U.S. patent, trademark, copyright, trade secret or similar right and the Software Code does not contain any destructive code that is intentionally designed to disrupt, disable, harm or impede the operation of any computer, computer system or application, or that is designed to impair any security of anti-hacking system or otherwise work to facilitate unauthorized access to any computer system or application. 7

9. Representations and Warranties-Summary Short Form Representations and Warranties What to include Materiality Knowledge Material Adverse Effect 8

10. II. Indemnification Contractual Term Third-Party Claims Responsibilities 9

11. Supplier Indemnity Supplier will indemnify, defend (with counsel satisfactory to Customer) and hold harmless Customer and all of its direct and indirect officers, directors, employees, agents, successors and assigns (each, a “ Customer Indemnified Person”) from any and all losses, liabilities, damages (including taxes), costs and expenses, including reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties (collectively, “Losses”), and threatened Losses due to, arising from or relating to third party claims, demands, actions or threat of action (whether in law, equity or in an alternative proceeding and whether groundless or otherwise) arising from or relating to: (i) Supplier’s actual or alleged breach of any representation or warranty set forth in this Agreement: (ii) any actual or alleged infringement, violation or misappropriation of the Intellectual Property Rights of any third person by Supplier Personnel or any of the Deliverables, or the use thereof; (iii) the negligent, willful or reckless acts or omissions of or by Supplier or any Supplier Personnel; or (iv) death, personal injury, bodily injury or property damage caused by the Deliverables, Supplier or any Supplier Personnel (“Customer Indemnified Claim”) 10

12. Indemnity: Limitation of Liability Time Amount Types of Damages 11

13. Indemnity: Limitation of Liability Subject to the limitations and other provisions of this Agreement, the representations and warranties contained herein shall survive until the date that is [NUMBER] years from the date of this Agreement. Vendor shall not be liable to the Customer for indemnification until the aggregate amount of all Losses in respect of indemnification exceeds $_______, in which event Vendor shall be required to pay or be liable for all such Losses from the first dollar. For purposes of this Section, any inaccuracy in or breach of any representation or warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty. 12

14. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, ALL WORK IS PROVIDED “AS IS” TO THE MAXIMUM EXTENT PERMITTED BY LAW. COMPANY DISCLAIMS ALL OTHER WARRANTIES HEREUNDER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY IN PERFORMING ITS OBLIGATIONS HEREUNDER WILL CREATE ANY WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE LIMITED WARRANTY MADE BY COMPANY IN THIS AGREEMENT. 13 Limitation of Liability

15. Limitation of Liability (continued) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES RELATED TO LOSS OF USE, DATA, SOFTWARE, BUSINESS, PROFITS OR GOODWILL, WORK STOPPAGE, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, INCLUDING WITHOUT LIMITATION ATTORNEYS’ FEES, ARISING IN CONTRACT, TORT OR OTHERWISE, EVEN IF SUCH PARTY HAS KNOWLEDGE OF THE POTENTIAL LOSS OR DAMAGE. CUSTOMER ACCEPTS THE TERMS AND CONDITIONS OF THIS AGREEMENT WITH THE UNDERSTANDING THAT COMPANY’S LIABILITY IS LIMITED, THE FEES PAYABLE HEREUNDER HAVE BEEN AND WILL BE CALCULATED ACCORDINGLY, AND THAT FMER MAY REDUCE ITS RISK FURTHER BY MAKING APPROPRIATE PROVISION FOR INSURANCE. CUSTOMER FURTHER AGREES TO MITIGATE ALL LOSSES OR DAMAGES TO THE EXTENT REASONABLY POSSIBLE. 14

16. Limitation of Liability (continued) COMPANY’S ENTIRE LIABILITY TO CUSTOMER UNDER OR RELATED TO THIS AGREEMENT, INCLUDING INDEMNIFICATION OBLIGATIONS UNDER THIS SECTION, SHALL NOT EXCEED THE TOTAL OF ALL FEES PAID BY CUSTOMER DURING THE THREE MONTHS PRECEDING THE CLAIM RESULTING IN SUCH LIABILITY, BUT IN NO CASE SHALL SUCH AMOUNT EXCEED $_____. 15