TERMS AND CONDITIONS FOR CHECKMARX PRODUCTS AND SERVICES TERM SOFTWARE LICENSE AND SUPPORT AGREEMENT

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1 All references to Checkmarx in these Terms and Conditions should be read as Contractor (immixtechnology, Inc.), acting by and through its supplier, Checkmarx. TERMS AND CONDITIONS FOR CHECKMARX PRODUCTS AND SERVICES 1.0 DEFINITIONS. TERM SOFTWARE LICENSE AND SUPPORT AGREEMENT 1.1 Affiliate means, with respect to a Party, any entity that, directly or indirectly, controls, is controlled by, or is under common control with such Party, and control means the direct or indirect possession of the power to direct or to cause the direction of the management and policies of the entity. 1.2 Authorized Contractor means a contractor who holds valid Named User Licenses purchased by Customer for the purpose of providing services to Customer. 1.3 Effective Date means the date set forth in the purchase order. 1.4 Fees means the Software license fees and applicable service fees charged by Licensor to Customer, as set forth in the purchase order. 1.5 License Term means the term of the Software license(s) purchased by Customer, as set forth in purchase order. 1.6 License Type means the type of licenses (e.g., Named User, Node Locked) purchased by Customer. 1.7 M.U.S. has the meaning set forth in Section Quote means a valid quotation document provided by Licensor or an authorized reseller setting out the quantity and type of products and services purchased by Customer. 1.9 Software means the object code form of Licensor s software programs for which Customer has purchased a license as set out in the purchase order, and all Enhancements and Updates provided to Customer during an active annual term license or M.U.S. subscription. 2.0 GRANT OF LICENSE. 2.1 Grant. Subject to the terms and conditions of this Agreement and the applicable purchase order, Licensor grants to Customer a limited, non-exclusive, non-transferable, non-sublicenceable (except as provided in Section 2.3), revocable license, during the License Term: (a) to utilize the Software and Documentation for internal use only, subject to the License Type limitations; (b) to make a reasonable amount of copies of the Documentation required for Customer s internal use; and (c) to make a reasonable number of copies of the Software and Documentation for inactive backup and archival purposes only. 2.2 Restrictions. Customer may not: (a) use the Software in excess of the License Type restrictions; (b) attempt to circumvent any license restrictions or License Type limitations; (c) reverse engineer, decompile, disassemble or create derivative works of the Software or Documentation; (d) reproduce, publish, distribute, transfer, publicly display, resell, rent, lease, sublicense, loan, or lend the Software or Documentation to any third party; (e) use the Software to provide code scanning or audit services to a third party, or make the Software available in a service bureau or any similar commercial time-sharing arrangement; (f) transfer, assign or permit the sharing of license keys or product codes to a third party; (g) make available to any third party any analysis of the results of the operation of the Software, including benchmarking results, without the express written consent of Licensor; or (h) otherwise provide access to the Software or the output generated by the Software to any individual who does not hold a valid Named User License. 2.3 Use by Authorized Contractors. Customer shall be permitted to permit use of the Software by Authorized Contractors by purchasing Named User licenses on behalf of Authorized Contractors who have a need to use the Software to fulfill contractual obligations to provide services to Customer. These Named User licenses may only be used by the Authorized Contractor in accordance with the terms and conditions set out in this Agreement: (a) for the benefit of Customer; and (b) to scan the code of Customer. The Authorized Contractor may not use the Software for the contractor s own benefit or for the benefit of any other party. Customer shall remain responsible at all times for the use of the Software and compliance with all terms and conditions of this Agreement by Authorized Contractors. immixtechnology, Inc. Page 1 reformatted

2 2.4 Audit and Enforcement Rights. Licensor shall be entitled, up to one time per each twelve (12) month period during the License Term, commencing on the Effective Date, to request a Software license audit to verify compliance with this Agreement and the number and type of licenses purchased by Customer. Within thirty (30) days of Licensor s written request, Customer shall conduct a diligent internal audit and shall provide Licensor with a written license compliance certification signed by a duly authorized officer of Customer, certifying the use of the Software during the specified audit period. 3.0 SUPPORT AND TRAINING. 3.1 Description of Support. Licensor will provide Software maintenance, upgrades and support ( M.U.S. ) during the License Term in accordance with the service level agreement attached hereto as Exhibit A. 3.2 Expiration of Service Hours. All training and other professional services hours/credits ordered by Customer must be used within six (6) months of purchase. 4.0 INSPECTION/ACCEPTANCE The Contractor (immixtechnology, Inc.) can only, and shall only tender for acceptance those items that substantially conform to the software manufacturer s ( Checkmarx ) published specifications. Therefore, items delivered shall be considered accepted upon delivery. The Government reserves the right to inspect or test any supplies or services that have been delivered. The Government may require repair or replacement of nonconforming supplies or re-performance of nonconforming services at no increase in contract price. If repair/replacement or re-performance will not correct the defects or is not possible, the Government may seek an equitable price reduction or adequate consideration for acceptance of nonconforming supplies or services. The Government must exercise its post-acceptance rights- (1) Within the warranty period; and (2) Before any substantial change occurs in the condition of the item, unless the change is due to the defect in the item. 5.0 TITLE AND OWNERSHIP; PROPRIETARY NOTICES. 5.1 By Licensor. Licensor retains all right, title and interest in and to the Software and Documentation and all copies, improvements, enhancements, modifications and derivative works of the Software and Documentation, including, without limitation, all patent, copyright, trade secret, trademarks and other intellectual property rights. All express or implied rights to the Software and Documentation not specifically granted herein are expressly reserved to Licensor. 5.2 Proprietary Notices. Customer may not remove the copyright, trademark and other proprietary notices contained on or in the Software and the Documentation as delivered to Customer on all copies of such Software and Documentation. 6.0 LIMITED WARRANTY. 6.1 Limited Software Warranty. Licensor warrants to Customer that, for a period of thirty (30) days after initial delivery to Customer (the Warranty Period ), the Software, when properly installed and used by Customer, will operate in substantial conformity with the functional specifications set out in the Documentation. If, during the Warranty Period, Customer determines that the Software does not comply with the above warranty, Customer shall provide Licensor with written notice documenting each such non-conformity. Within a reasonable time after receipt of Customer s notice, Licensor shall, at Licensor s sole discretion and as Customer s sole and exclusive remedy: (a) deliver to Customer a Workaround or correction of the non-conformity; (b) offer to Customer a similar software product with substantially the same functionality as the non-conforming Software; or (c) promptly terminate this Agreement and refund the amount of license fees paid by Customer for the non-conforming Software, less a reasonable pro-rated amount reflecting any actual use of the Software by Customer prior to the date of refund. 6.2 Warranty Limitations. The limited warranty set forth above in Section 6.1 shall not apply to the extent the Software: (a) is not used in accordance with the Documentation; (b) has been modified without Licensor's express authorization; (c) fails to function due to a malfunction of Customer's equipment; or (d) fails to function because of third party software (software and/or hardware), incorporated or integrated with, or used in connection with the Software which was not provided or approved by Licensor. 6.3 Disclaimer of Warranties. EXCEPT FOR THE LIMITED WARRANTY PROVIDED IN SECTION 6.1, ALL SOFTWARE AND DOCUMENTATION IS PROVIDED ON AN "AS IS" BASIS. THE LIMITED WARRANTY SET FORTH IN SECTION 6.1 IS THE EXCLUSIVE WARRANTY OFFERED BY LICENSOR AND ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR immixtechnology, Inc. Page 2 reformatted

3 OTHERWISE ARE EXPRESSLY DISCLAIMED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL MEET THE REQUIREMENTS OF CUSTOMER, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED AND/OR ERROR-FREE. LICENSOR DOES NOT REPRESENT OR WARRANT THAT THE USE OF THE SOFTWARE WILL RENDER CUSTOMER S CODE FREE FROM ERRORS OR SAFE FROM INTRUSIONS OR ANY OTHER SECURITY EXPOSURES, OR THAT THE SOFTWARE WILL DETECT ALL ERRORS OR VULNERABILITIES IN CUSTOMER S CODE. 6.4 Exclusive Remedy. THIS SECTION 6 STATES CUSTOMER S SOLE AND EXCLUSIVE REMEDY AND THE ENTIRE LIABILITY OF LICENSOR FOR BREACH OF WARRANTY. 7.0 LIMITATION OF LIABILITY. 7.1 Limitations on Damages. EXCEPT FOR LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW, LICENSOR SHALL NOT BE LIABLE OR OBLIGATED IN ANY MANNER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST REVENUE, LOSS OF USE, REMEDIATION COSTS, EXTRA EXPENSE OR LOSS OF GOODWILL, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. EXCEPT FOR LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW, THE AGGREGATE LIABILITY OF LICENSOR AND ITS LICENSORS UNDER OR FOR BREACH OF THIS AGREEMENT FOR ANY CAUSE WHATSOEVER SHALL NOT EXCEED THE LICENSE FEES PAID TO LICENSOR UNDER THIS AGREEMENT DURING THE PREVIOUS TWELVE (12) MONTHS PRECEDING ANY CLAIM HEREUNDER. EXCLUDING REPROCUREMENT COSTS. This clause shall not impair the U.S. Government s right to recover for fraud or crimes arising out of or related to this Contract under any federal fraud statute, including the False Claims Act, 31. U.S.C Reserved. 8.0 RESERVED. 9.0 GENERAL PROVISIONS. 9.1 Confidentiality of Software and Documentation. Customer agrees that the Software constitutes trade secrets and confidential information of Licensor. Customer agrees, subject to the licenses and rights granted herein, to maintain the Software in confidence, using the same degree of care it uses for its own confidential information of a similar nature. 9.2 Restricted Parties. Customer represents and warrants that it is not a "Restricted Party," which shall be deemed to include any person or entity: (a) located in or a national of Iran, Lebanon, Libya, North Korea, Sudan, Syria, or any other countries subject to U.S. or Israeli embargo or trade restrictions; (a Prohibited Territory ) or (b) on the U.S. Department of Commerce Denied Person s List, Entity List, or Unverified List; the U.S. Department of the Treasury's list of Specially Designated Nationals and Blocked Persons; or the U.S. Department of State's List of Debarred Parties. Customer shall not distribute, transfer or permit access to any Licensor Software or Documentation to any Restricted Party or any person or entity in a Prohibited Territory without the prior, express written authorization from Licensor and, as appropriate, any relevant government agency. 9.3 United States Government Rights in Commercial Off-the-Shelf Software. The Software and Documentation constitute commercial computer software, and commercial computer software documentation and technical data as defined in FAR Section Consistent with the applicable provisions of the applicable federal acquisition regulations, including but not limited to 48 C.F.R or 48 C.F.R through , as applicable, the Software and Documentation are being licensed to U.S. Government end users only as commercial items and pursuant solely to the terms and conditions herein. 9.4 Add-Ons. Licensor or other third parties may make available optional add-ons, extensions, plug-ins or services intended to enhance the functionality of the Software (the Add-Ons ). Such Add-Ons, if ordered by Customer, may be subject to additional Fees. immixtechnology, Inc. Page 3 reformatted

4 EXHIBIT A Maintenance, Upgrades and Support (M.U.S.) 1. DEFINITIONS. (a) (b) (c) (d) (e) (f) Bug means an error condition that causes the Software to fail to operate in substantial compliance with the Documentation. Enhancement means a new version of the Software which Licensor makes generally available to its customers who are eligible to receive support. "Normal Business Hours" means Monday through Friday, 09:00 17:00, Customer s local time, excluding public holidays. Resolution Time means the time elapsed until a Workaround or permanent solution to a Bug has been provided in accordance with the resolution timelines set out below, according to the severity classification. Updates means a set of procedures or new program code that Licensor implements to fix Bugs. Workaround means a temporary error correction or change in operating procedure allowing Customer to continue to use the Software until a long-term solution has been provided. All capitalized terms not defined above shall have the meaning set forth in the main body of the license Agreement above. 2. SUPPORT. During the Term of the Agreement: (a) (b) (c) (d) (e) (f) Licensor will provide technical support and assistance with respect to the Software, including: (i) clarification of functions and features; (ii) clarification of Documentation; and (iii) technical support and assistance in the operation of the Software. Licensor shall provide this general support only for the latest version of the Software and the one previous version. Licensor shall provide support during Normal Business Hours via telephone and to Customer s Support Contact Designee. Bug fixes will generally be accomplished through the periodic release of Updates and Enhancements. Customer acknowledges that some Bug fixes will require Customer to update the Software to the then-current version, and Licensor shall not be required to provide Bug fixes, Enhancements or Updates for any Software version other than the then-current version. Errors in the Documentation will be corrected by Licensor in its discretion. Licensor shall not be responsible for providing support for matters not directly involving problems with the Software, such as Customer operations problems, database problems, interfaces to other systems, and third party products (software and/or hardware). Licensor shall not be responsible to provide support for problems resulting from unauthorized modifications of the Software, Software misuse, use of the Software in a manner other than described in the Documentation, or negligence on the part of the Customer or a third party outside of Licensor's control. 3. RESPONSE AND RESOLUTION SCHEDULE. Customer will initially classify each Bug in the Software or error in the Documentation based on the following schedule, and thereafter report such Bug or error to Licensor for correction. Licensor shall perform problem management in accordance with the priority level initially determined by Customer; however the final classification of the priority level will be determined by Licensor in accordance with the table below: PRIORITY LEVEL: Priority 1 Priority 2 Priority 3 CRITERIA Fatal: Bug preventing all use of the Software. Severe Impact: Bug disabling major functions from being performed. This condition exists when the Software is partially inoperative, but is still usable by Customer and the impact is one of inconvenience. Minimal Impact: Includes all other Bugs. This condition generally exists when the Software is usable and the problems consist of inconveniences or minor failures involving individual components of the system. immixtechnology, Inc. Page 4 reformatted

5 Upon receipt of Customer s service ticket initially classifying the priority of the problem, Licensor shall use commercially reasonable efforts to promptly contact Customer to confirm the priority level of the service call, and shall use commercially reasonable efforts to respond to, restore or resolve Bug related error reports and service calls according to the following schedule: Priority 1 Priority 2 Priority 3 PRIORITY LEVEL RESOLUTION TIME 1 to 2 business days 3 to 6 business days Licensor s discretion 4. CUSTOMER S OBLIGATIONS DURING THE LICENSE TERM PERIOD. (a) (b) (c) (d) Customer shall notify Licensor of any Bugs and errors by sending an to support@checkmarx.com. Customer shall appoint one support contact designee who will be Licensor s single point of contact for support requests. Customer shall provide Licensor with all reasonably requested reasonable cooperation and assistance as required to provide support in accordance with the response times set out above. Licensor shall not be responsible for failure to meet its service level obligations to the extent caused by Customer s failure to provide reasonable support and assistance to Licensor. All support services are provided remotely unless otherwise agreed by the parties. If Customer requires the use of specific remote connectivity software, it is customer responsibility to license and operate such software. Remote support shall be provided via WebEx or other mutually agreed means. immixtechnology, Inc. Page 5 reformatted

6 PERPETUAL SOFTWARE LICENSE AND TERM SUPPORT AGREEMENT 1.0 DEFINITIONS. 1.1 Affiliate means, with respect to a Party, any entity that, directly or indirectly, controls, is controlled by, or is under common control with such Party; and control means the direct or indirect possession of the power to direct or to cause the direction of the management and policies of the entity. 1.2 Authorized Contractor means a contractor who holds a valid Named User License purchased by Customer for the purpose of providing services to Customer and its Affiliates. 1.4 Documentation means the user guides, installation instructions, release notes and/or training manuals provided to Customer by Licensor upon delivery of the Products as updated from time to time by Licensor, but does not include marketing materials or sales correspondence. 1.5 Effective Date is set forth in the applicable purchase order. 1.6 Fees means the fees charged by Licensor to Customer for the Product License and M.U.S. Fees as set forth in the purchase order. 1.7 License Type means the node locked or restricted user licenses set forth in Exhibit A. 1.8 M.U.S. means maintenance, upgrade and support as set forth in Exhibit B. 1.9 M.U.S. Period is set forth in Exhibit A and the purchase order "Normal Business Hours" means Monday through Friday, 9:00 17:00 Customer local time Product(s) means the object code form of Licensor s software programs which are set forth in Exhibit A; and all bug fixes, Updates, and Enhancements provided to Customer during the Term of this Agreement Territory means the territory set forth in Exhibit A Term means the Product license term set forth in Exhibit A Workaround means the term set forth in Exhibit B. 2.0 GRANT OF LICENSE. 2.1 Grant. Subject to the terms and conditions of this Agreement and the applicable purchase order, Licensor grants to Customer a perpetual, non-exclusive, non-transferable, non-sublicenseable (except only as provided in Section 2.3) license, within the Territory: (a) to utilize the Products and Documentation for internal use only, subject to the limitations of the License Type; and (b) to make one (1) copy of the Products for archival and backup purpose only, and a reasonable amount of copies of the Documentation required for Customer s internal use. 2.2 Restrictions. Customer may not directly or indirectly, alone or with any third party: (a) work around any technical limitations in the Products or attempt to circumvent any License Type restrictions; (b) reverse engineer, decompile, disassemble or create derivative works of the Products or Documentation; (c) reproduce, publish, distribute, transfer, publicly display, resell, rent, lease, sublicense, loan, or lend the Products or Documentation to any third party; (d) use the Products in any manner that is against the law of any jurisdiction; (e) use the Products for commercial software or commercial audit services, or make the Products available in a service bureau or any similar commercial time-sharing arrangement; (f) use the Products for the benefit of any third party; (g) transfer, assign or permit the sharing of license keys to a third party; (h) process or permit to be processed any code of a third party; or (i) otherwise provide third party access to the Products or Documentation. 2.3 Sublicensing; Use by Authorized Contractors. Customer shall be permitted to grant sublicenses to Customer s Affiliates, by purchasing additional Named User licenses on behalf of its Affiliates, who shall be entitled to use the Product for their own internal use subject to the terms and conditions of this Agreement. Customer shall also be permitted to grant sublicenses to Authorized Contractors by purchasing additional Named User licenses on behalf of Authorized Contractors who have a need to use the Product to fulfill contractual obligations to provide services to Customer or its Affiliates. These Named User licenses may only be used by the Authorized Contractor: (a) for the benefit of Customer and its Affiliates; and (b) to scan the code of Customer or its Affiliates. The Authorized Contractor may not use the Product for the contractor s own benefit or for the benefit of any other party. Customer shall remain responsible at all times for the use of the Product and compliance with all terms and conditions of this Agreement by its Affiliates and Authorized Contractors. 2.4 Audit and Enforcement Rights. Licensor shall be entitled, up to one time per each twelve (12) month period during the Term, commencing on the Effective Date, to request a Product license audit to verify compliance with this Agreement and the number and type of licenses purchased by Customer. Within thirty (30) days of Licensor s written request, Customer shall conduct a diligent internal audit and shall provide Licensor with a written license compliance certification signed by a duly authorized officer of Customer, certifying the use of the Products during the specified audit period. immixtechnology, Inc. Page 6 reformatted

7 3.0 SUPPORT. 3.1 Description of Support. Subject to the terms and conditions of this Agreement and the applicable purchase order, Licensor will provide M.U.S. in accordance with the service level agreement attached hereto as Exhibit B during the M.U.S. Period. 3.2 M.U.S. Renewals. The M.U.S. Period may be renewed at Customer s option as set forth in this Section. If Customer s M.U.S. Period should terminate or expire, Customer may reinstate M.U.S. upon issuance of a purchase order and payment of: (a) the cumulative outstanding M.U.S. Fees that would have been paid had the M.U.S. not lapsed, plus (b) the M.U.S. Fees for the renewal period, according to Licensor s then applicable price list 3.3 Product End of Life Support Policy. Licensor retains the right to discontinue ( End-of-Life ) a Product, upon twelve (12) months prior written notice to Customer. Following the Product End-of-Life, Product licenses and M.U.S. shall no longer be available for purchase, and Licensor shall have no further obligation to support the Product. 4.0 INSPECTION/ACCEPTANCE. The Contractor (immixtechnology, Inc.) can only, and shall only tender for acceptance those items that substantially conform to the software manufacturer s ( Checkmarx ) published specifications. Therefore, items delivered shall be considered accepted upon delivery. The Government reserves the right to inspect or test any supplies or services that have been delivered. The Government may require repair or replacement of nonconforming supplies or re-performance of nonconforming services at no increase in contract price. If repair/replacement or re-performance will not correct the defects or is not possible, the Government may seek an equitable price reduction or adequate consideration for acceptance of nonconforming supplies or services. The Government must exercise its postacceptance rights- (1) Within the warranty period; and (2) Before any substantial change occurs in the condition of the item, unless the change is due to the defect in the item. 5.0 TITLE AND OWNERSHIP; PROPRIETARY NOTICES. 5.1 By Licensor. Licensor retains all right, title and interest in and to the Software and Documentation and all copies, improvements, enhancements, modifications and derivative works of the Software and Documentation, including, without limitation, all patent, copyright, trade secret, trademarks and other intellectual property rights. All express or implied rights to the Products and Documentation not specifically granted herein are expressly reserved to Licensor. 5.2 Proprietary Notices. Customer may not remove the copyright, trademark and other proprietary notices contained on or in the Products and the Documentation as delivered to Customer on all copies of such Products and Documentation. 6.0 LIMITED WARRANTY. 6.1 Limited Product Warranty. Licensor warrants to Customer that: (a) for a period of thirty (30) days after Acceptance by Customer (the Warranty Period ), the Product, when properly installed and used in accordance with the Documentation, is capable of operating in substantial conformity with the Documentation; and (b) Licensor will, prior to delivery of the Product, perform standard scans to prevent the presence of viruses, bugs, malware or other harmful or malicious code in the Product. 6.2 Warranty Limitations. The limited warranties set forth above in Section 6.1 shall not apply if the Product: (a) is not used in accordance with the Documentation; (b) has been modified without Licensor's express authorization; (c) fails to function due to a malfunction of Customer's equipment; or (d) fails to function because of third party products (software and/or hardware), incorporated or integrated with, or used in connection with the Products which are not provided or approved by Licensor. 6.3 Warranty Claims. If, during the Warranty Period, Customer determines that the Products do not comply with the warranties set forth in Section 6.1, Customer shall provide Licensor with written notice documenting each such non-conformity. Within a reasonable time after receipt of Customer s notice, Licensor shall, at Licensor s sole discretion and as Customer s sole and exclusive remedy: (a) deliver to Customer a Workaround or correction of the non-conformity; (b) offer to Customer a similar product with substantially the same functionality as the non-conforming Product or (c) immediately terminate this Agreement and refund the prorated amount of license fees paid by Customer for such Product, depreciated over the remaining duration of the Term on a straightline basis beginning on the Effective Date. 6.4 Disclaimer of Liability. EXCEPT FOR THE LIMITED WARRANTIES PROVIDED IN SECTION 6.1, ALL PRODUCTS AND DOCUMENTATION ARE PROVIDED ON AN "AS IS" BASIS. THE LIMITED WARRANTIES SET FORTH IN SECTION 6.1 ARE THE EXCLUSIVE WARRANTIES OFFERED BY LICENSOR AND ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE ARE EXPRESSLY DISCLAIMED, INCLUDING BUT NOT LIMITED TO ANY immixtechnology, Inc. Page 7 reformatted

8 WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. LICENSOR DOES NOT WARRANT THAT THE PRODUCTS WILL MEET THE REQUIREMENTS OF CUSTOMER, THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED AND/OR ERROR FREE. LICENSOR DOES NOT REPRESENT OR WARRANT THAT THE USE OF THE PRODUCTS WILL RENDER CUSTOMER S CODE FREE FROM ERRORS OR SAFE FROM INTRUSIONS OR ANY OTHER SECURITY EXPOSURES, OR THAT THE PRODUCTS WILL DETECT ALL ERRORS OR VULNERABILITIES IN CUSTOMER S SOURCE CODE. THE REMEDIES SET FORTH IN THIS SECTION 6 ARE THE SOLE AND EXCLUSIVE REMEDIES REGARDING ACTUAL OR ALLEGED BREACH OF WARRANTY OR FAILURE OF THE PRODUCT TO PERFORM. 7.0 INDEMNIFICATION. 7.1 Infringement Indemnification. Subject to 28 U.S.C. 516, Licensor will defend at its own expense any action brought against Customer by a third party to the extent that the action is based on a claim that the Products directly infringe any validly registered patent or copyright, and Licensor shall pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim, or those costs and damages which have been agreed by Licensor in a monetary settlement of such action. Licensor s indemnification obligations are expressly conditioned upon Customer giving Licensor prompt written notice of any actual or threatened claim, allowing Licensor control of the defense and all related settlement negotiations, providing full cooperation for the defense of same to Licensor, and not settling or negotiating a settlement of any such claim without Licensor's prior written approval. 7.2 Remedies. In the event the Product is determined to, or is believed by Licensor to, become the subject of an infringement claim, Licensor may, at its sole discretion: (a) modify the Product so that it is non infringing; (b) replace the Product with a non infringing Product that is functionally equivalent or superior in performance; (c) obtain a license for Customer to continue to use the Product as provided hereunder; or (d) immediately terminate the license for the allegedly infringing Product, have Customer return or destroy such Product, and refund the prorated amount of license fees paid by Customer for such Product, depreciated over the remaining duration of the Term on a straight-line basis beginning on the Effective Date. 7.3 Exclusions. Licensor shall have no obligation or liability for any claim of infringement or misappropriation based on the: (a) use of other than the then-latest release of the Product, if such infringement could have been avoided by use of the latest release; or (b) use of the Product in combination with other materials (hardware or software) not provided by Licensor where infringement would not have resulted but for such combination; or (c) modification of the Products by anyone other than Licensor where infringement would not have resulted but for such modification; or (d) use of the Products in violation of the terms of this Agreement. 7.4 No Additional Liability. THIS SECTION STATES CUSTOMER S SOLE AND EXCLUSIVE REMEDY AND THE ENTIRE LIABILITY OF LICENSOR WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS. 8.0 LIMITATION OF LIABILITY. 8.1 Limitations on Damages. EXCEPT FOR LIABILITY ARISING UNDER SECTION 7 ( INFRINGEMENT INDEMNIFICATION ) AND SECTION 9 ( CONFIDENTIAL INFORMATION ), AND EXCEPT FOR LIABILITY DUE TO DEATH OR PERSONAL INJURY CAUSED BY GROSS NEGLIGENCE OR LIABILITY DUE TO FRAUD, LICENSOR SHALL NOT BE LIABLE OR OBLIGATED IN ANY MANNER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST REVENUE, LOSS OF USE, REMEDIATION COSTS, EXTRA EXPENSE OR LOSS OF GOODWILL, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. EXCEPT FOR LIABILITY ARISING UNDER SECTION 7 ( INFRINGEMENT INDEMNIFICATION ) AND SECTION 9 ( CONFIDENTIAL INFORMATION ), AND EXCEPT FOR LIABILITY DUE TO DEATH OR PERSONAL INJURY CAUSED BY GROSS NEGLIGENCE OR LIABILITY DUE TO FRAUD, THE AGGREGATE LIABILITY OF LICENSOR AND ITS LICENSORS UNDER OR FOR BREACH OF THIS AGREEMENT FOR ANY CAUSE WHATSOEVER SHALL NOT EXCEED THE LICENSE FEES PAID TO LICENSOR UNDER THIS AGREEMENT DURING THE PREVIOUS TWELVE (12) MONTHS PRECEDING ANY CLAIM HEREUNDER. EXCLUDING REPROCUREMENT COSTS. This clause shall not impair the U.S. Government s right to recover for fraud or crimes arising out of or related to this Contract under any federal fraud statute, including the False Claims Act, 31. U.S.C Reserved. 9.0 CONFIDENTIAL INFORMATION. immixtechnology, Inc. Page 8 reformatted

9 9.1 Confidential Information means: (a) any proprietary or trade secret information disclosed by one Party to the other which has been designated as confidential at the time of disclosure; (b) Licensor s Products and Documentation in any embodiment; (c) any Product license keys or activation codes; (d) any price quotes, specifications or other documentation prepared specifically for Customer by Licensor. 9.2 Restrictions on Use and Disclosure. Subject to the Freedom of Information Act, 5 U.S.C. 552, each Party agrees not to disclose to any third party any of the other Party s Confidential Information without such other Party s prior written consent, save that Licensor may share Customer s Confidential Information with its Affiliates as required to perform its obligations to Customer under this Agreement. Each Party agrees to take the same care with such items of Confidential Information as it does with its own Confidential Information, but in no event less than a reasonable degree of care. Each Party agrees to limit access to the other Party s Confidential Information to those personnel having a need to know such information in order for that Party to exercise its rights or perform its obligations under this Agreement, and then only after obtaining the written agreement of all such persons to maintain the confidentiality of such information and restrict its use solely to the purposes(s) specified in this Agreement. 9.3 Exclusions. Except with respect to the Products and Documentation, a Party s Confidential Information shall not include information that a Party can demonstrate through written evidence: (a) is or becomes publicly available through no act or omission of the other Party; (b) was in the other Party s lawful possession prior to the disclosure without obligation of confidentiality; (c) is lawfully and rightfully disclosed to the other Party by a third party without restriction on use or disclosure; or (d) is independently developed by the other Party without use of the disclosing Party s Confidential Information RESERVED PUBLICITY If approved in advance by Customer in writing, Licensor shall be permitted: (a) to allow Licensor to list Customer as a current customer on its website, in press releases, or other written formats, in such a manner that does not imply Customer s endorsement of Licensor or the Product; (b) to allow Licensor to issue a press release within 90 days after this Agreement is signed indicating that Customer has agreed to purchase Product licenses; (c) to allow Licensor to use Customer as a reference for the Products, which may include telephone references and onsite prospective client visits, upon obtaining Customer s prior consent and at times that are convenient to Customer; (d) to allow Licensor to publish a case study that describes how the Products were used to solve customer s business needs and provide value to Customer, subject to Customer s prior review and approval; and (e) to give Licensor at Customer s discretion a presence on Customer s web site, so that the Licensor s name and/or logo will be readily visible by visitors to Customer s web site GENERAL PROVISIONS Restricted Parties. Customer represents and warrants that it is not a "Restricted Party," which shall be deemed to include any person or entity: (a) located in or a national of Iran, Lebanon, Libya, North Korea, Sudan, Syria, or any other countries subject to U.S. or Israeli embargo or trade restrictions (a Prohibited Territory ) or (b) on the U.S. Department of Commerce Denied Person s List, Entity List, or Unverified List; the U.S. Department of the Treasury's list of Specially Designated Nationals and Blocked Persons; or the U.S. Department of State's List of Debarred Parties. Customer shall not distribute, transfer or permit access to any Vendor Software or Documentation to any Restricted Party or any person or entity in a Prohibited Territory without the prior, express written authorization from Vendor and, as appropriate, any relevant government agency United States Government Rights in Commercial Off-the Shelf Software. The Software and Documentation constitute commercial computer software, and commercial computer software documentation and technical data as defined in FAR Section Consistent with the applicable provisions of the applicable federal acquisition regulations, including but not limited to 48 C.F.R or 48 C.F.R through , as applicable, the Software and Documentation are being licensed to U.S. Government end users only as commercial items and pursuant solely to the terms and conditions herein. immixtechnology, Inc. Page 9 reformatted

10 EXHIBIT A General Definitions, Products & Pricing Customer Data: "Effective Date" shall mean the date set forth in the applicable purchase order "Term" shall mean: Product License Term: Perpetual M.U.S. Period: i.e. 12, 24, 36 months Customer Contact shall mean the individual designated to receive notices under this agreement. Territory shall mean the physical territory where the License is granted. Products: Product [complete: products] CxSuite Application Server/CxEngine CxScanner License Type Node-locked Named User License SPECIAL TERMS: Notes: (1) Definition of License Types: Node-locked means a license is tied to a specific system/machine so that the Product may only be used on that system/machine. Named User License means a license is tied to a specific named user so that the Product may only be used by that individual named user. immixtechnology, Inc. Page 10 reformatted

11 EXHIBIT B Support 1. DEFINITIONS. Bug means an error condition that causes the Product to fail to operate substantially in compliance with the Documentation. Enhancement means a new version of a Product which Licensor makes generally available to its customers who are eligible to receive Support, which may improve the functionality of, or add minor functional capabilities to, the Products. Resolution means the time elapsed until a Workaround or permanent solution to the Bug has been provided in accordance with Exhibit B according to the severity classification. Updates means a set of procedures or new program code that Licensor implements to fix Bugs, and which may include modifications to improve performance or revisions to versions or releases of a Product which may improve its functionality, or additions or corrections to Documentation. Workaround means a temporary error correction or change in operating procedure allowing Customer to continue to use the Products. All capitalized terms not defined above shall have the meaning set forth in the main body of the license Agreement above. 2. SUPPORT. During the Term of the Agreement and subject to Customer s payment of applicable fees:, 2.1. Licensor will provide technical support and assistance with respect to the Products, including (i) clarification of functions and features; (ii) clarification of Documentation; and (iii) technical support and assistance in the operation of the Products. Licensor shall provide this general support only for the latest version of the Product and the one previous version. Licensor shall provide support during Normal Business Hours via telephone, and to Customer s Support Contact Designee Bug fixes will generally be accomplished through the periodic release of Updates and Enhancements. Customer acknowledges that some Bug fixes will require Customer to update the Product to the then-current version, and Licensor shall not be required to provide Bug fixes, Enhancements or Updates for any Product version other than the then-current version Errors in the Documentation will be corrected by Licensor in its discretion. Licensor shall not be responsible for providing support for matters not directly involving problems with the Products, such as Customer operations problems, database problems, and interfaces to other systems, third party products (software and/or hardware) etc Licensor shall not be responsible to provide support for problems resulting from unauthorized modifications of the Product; Product misuse; use of the Product in a manner other than described in the Documentation; or negligence on the part of the Customer or a third party outside of Licensor's control. immixtechnology, Inc. Page 11 reformatted

12 3. RESPONSE AND RESOLUTION SCHEDULE. Customer will initially classify each error in the Product or related Documentation based on the following schedule, and thereafter report such error or Bug to Licensor for correction. Licensor shall perform problem management in accordance with the priority level initially determined by Customer; however the final classification of the priority level will be determined by Licensor. PRIORITY LEVEL: Priority 1 Priority 2 Priority 3 CRITERIA Fatal: Bug preventing all use of the Product. Severe Impact: Bug disabling major functions from being performed. This condition exists when the Product is partially inoperative, but is still usable by Customer and the impact is one of inconvenience. Minimal Impact: Includes all other Bugs. This condition generally exists when the Product is usable and the problems consist of inconveniences or minor failures involving individual components of the system. Upon receipt of Customer s service call initially classifying the priority of the problem, Licensor shall use commercially reasonable efforts to promptly contact Customer to confirm the priority level of the service call, and shall use commercially reasonable efforts to respond to, restore or resolve Bug related error reports and service calls according to the following schedule: PRIORITY RESOLUTION LEVEL TIME Priority 1 1 to 2 business days Priority 2 3 to 6 business days Priority 3 Licensor s discretion 4. CUSTOMER S OBLIGATIONS DURING THE LICENSE TERM PERIOD. (a) (b) (c) (d) (e) (f) Customer shall appoint one Support Contact Designee. Customer shall properly maintain the Products at the then-current version and release level as provided herein. Subject to Customer s security requirements, Customer shall provide Licensor with reasonable access to Customer s system facilities including, but not limited to, a secure connection to Customer s principal server, which has been determined by the Parties to be required in order that timely support may be provided pursuant to this Agreement. Customer shall provide remedial corrective action, if necessary, with the assistance of Licensor personnel. Customer shall notify Licensor of any Bugs in accordance with Licensor s then-current problem reporting procedures. If Customer has purchased a node-locked Product license, Customer may transfer the license to a reasonable number of machines, in Licensor s discretion, by: (a) sending written notification of such immixtechnology, Inc. Page 12 reformatted

13 (g) transfer to Licensor, signed by an authorized officer of Customer; and (b) promptly deleting the previously installed version upon transfer of the Product to the new machine. All support services are provided remotely unless otherwise agreed by the parties. Customer will use commercially reasonable efforts to provide Licensor with remote diagnostic capabilities by using standard remote software packages. It is customer responsibility to license and operate any such remote diagnostic software. immixtechnology, Inc. Page 13 reformatted