Software License and Services Agreement

1.1 Software License

Subject to the terms and conditions of the Agreement, Supplier grants to Customer a limited, non-exclusive, non-transferable license during the License Term to install, execute, and use the Software solely on Customer’s system for internal business purposes in accordance with the Documentation.

1.2 Evaluation License

For trial or evaluation licenses, Supplier grants a limited, non-exclusive, non-transferable license for thirty (30) days to install and use the Software only for internal evaluation or test purposes. After the evaluation period, Customer’s access may be disabled by features in the evaluation Software license key. Evaluation use is provided “as-is” without Support Services or warranty obligations.

1.3 License Restrictions

Customer shall not: (i) use the Software except as expressly permitted; (ii) adapt, alter, publicly display, translate, or create derivative works; (iii) sell, resell, sublicense, lease, rent, disclose, or distribute the Software; (iv) transfer the Software to any third party except as provided; (v) reverse engineer, decompile, or disassemble; (vi) remove or alter proprietary notices; or (vii) allow third parties to access the Software in any application service provider environment, service bureau, or time-sharing arrangement.

Customer may make a reasonable number of backup copies of the machine-readable Software solely for restoration purposes and must reproduce all proprietary notices on each copy.

1.4 Delivery

Supplier will deliver the Software electronically by making it available for download. The Software may require license keys or codes to install and use. Such keys may also control continued access to and use of the Software. Acceptance occurs upon delivery of the keys and may not be revoked.

2.1 Available Services

By mutual agreement, Supplier may provide Support Services and limited Consulting Services as specified on the Order Form. Support Services terms are available at the Supplier’s website. Supplier reserves the right to amend its standard Support Services terms at any time with notice to Customer. Changes to Services identified on the Order Form require a change order agreed to by both parties.

2.2 Consulting Services

If provided on an Order Form, Supplier may include limited, one-time configuration, planning, installation, and deployment services to be performed within thirty (30) days of the Order Form Effective Date. Supplier shall furnish skilled personnel and necessary equipment for timely completion. Supplier agrees to comply with Customer’s work site policies and procedures.

3.1 Payment Terms

Customer will pay the total fees specified in the Order Form net thirty (30) days of the invoice date. All payments shall be made in U.S. dollars. Late payments will accrue interest at the rate of one and one-half percent (1.5%) per month. All amounts paid are non-refundable and without set-off unless otherwise provided.

3.2 Taxes

All amounts payable are exclusive of any sales, use, excise, import, export or value-added tax, levy, duty or similar governmental charge. Customer will pay or reimburse Supplier for all Taxes resulting from transactions, except Taxes based on Supplier’s net income. Customer is responsible for all duties and customs fees unless providing a valid tax exemption certificate.

4.1 Confidential Information

By virtue of the Agreement, the parties may have access to each other’s confidential information. Confidential Information shall include without limitation the Software, Services, any reports or data generated by Customer’s use of the Software, and the terms and pricing under this Agreement.

Confidential Information shall not include information that: (i) is or becomes public domain through no act of the receiving party; (ii) was lawfully in the receiving party’s possession prior to disclosure; (iii) is lawfully disclosed by a third party without restriction; or (iv) is independently developed without reference to the disclosing party’s information.

The parties agree to hold each other’s Confidential Information in confidence during the term of this Agreement and for a period of three (3) years after termination. Unless required by law, the parties shall not make Confidential Information available to third parties except for implementing the Agreement. Supplier, with prior written approval, may use Customer’s name and a description of Customer’s use of the Software for investor relations and marketing purposes.

4.2 Required Disclosures

If required under law to disclose Confidential Information, the receiving party shall use commercially reasonable efforts to: (i) promptly give notice to enable the disclosing party to seek protective orders; (ii) consult regarding the scope of the request; and (iii) limit disclosure to what is necessary and required.

5.1 Term

The Agreement is effective as of the Effective Date specified on the initial Order Form and remains in effect until all Licenses expire or are terminated, unless earlier terminated per Section 5.3.

5.2 Renewal Term

The License Term is specified in the applicable Order Form. Except as otherwise specified in an Order Form, the License will automatically renew for additional one-year terms, unless either party gives the other written notice at least sixty (60) days before the end of the applicable License Term. Renewal of promotional pricing will be at Supplier’s applicable list price in effect at the time of renewal. Consulting Services are not included in renewal unless the parties agree otherwise.

5.3 Termination of Agreement

In the event of default, the non-defaulting party may terminate by providing written notice. If Customer defaults, Customer must promptly destroy or return all affected Software and Documentation. Either party is in default if it declares bankruptcy, becomes insolvent, makes an assignment for the benefit of creditors, or otherwise fails to perform any of its duties or obligations and does not substantially cure within thirty (30) days. Breaches of License Restrictions, Confidentiality, or Export Compliance allow immediate termination.

5.4 Effect of Termination

Upon termination, all Customer rights to use the Software cease and: (i) unfulfilled Order Forms terminate at Supplier’s discretion; (ii) amounts owed become immediately due; (iii) all License rights terminate and Customer must stop using the Software; (iv) Supplier’s obligation to provide Support Services terminates; (v) Customer shall erase all Software copies from computers and destroy tangible media or return copies to Supplier; and (vi) upon request, Customer shall certify in writing that it has returned or destroyed such materials.

5.5 Survival

Sections 4 (Confidentiality), 5.4 (Effect of Termination), 5.5 (Survival), 6 (Proprietary Rights), 8 (Indemnity) for pre-termination claims, 9 (Limitation of Liability), 11 (General), and Customer’s payment obligations survive the termination of the Agreement.

6.1 Proprietary Rights

Supplier and its licensors retain all right, title, and interest in and to the Software, Documentation, Services, and all related intellectual property rights. Except for the limited license expressly granted in this Agreement, no rights are transferred to Customer. Customer acknowledges that the Software embodies valuable trade secrets and proprietary information of Supplier.

6.2 Feedback

If Customer provides Supplier with any suggestions, comments, or other feedback regarding the Software, Documentation, or Services (“Feedback”), such Feedback shall be provided on a non-confidential basis, and Supplier shall be free to use, disclose, reproduce, license, and otherwise distribute and exploit the Feedback without restriction or obligation of any kind.

7.1 General

Each party represents and warrants that it has the right and power to enter into this Agreement, and that an authorized representative has executed this Agreement.

7.2 Compliance with Laws

Each party will perform its obligations under this Agreement in a manner that complies with all applicable laws. Each party will promptly notify the other if it discovers a violation of applicable law affecting its performance or receives written allegations of noncompliance from a government agency. The non-compliant party will promptly take corrective action and notify the other.

7.3 Limited Software Warranty and Remedy

For sixty (60) days after Software delivery, Supplier warrants that the Software shall materially conform to the Documentation. Supplier does not warrant uninterrupted operation or “bug”-free performance. If Supplier breaches this warranty and Customer promptly notifies Supplier in writing, Supplier shall make commercially reasonable efforts to promptly repair or replace the non-conforming Software without charge. If, after a reasonable opportunity to cure not exceeding thirty (30) days, Supplier does not repair or replace the Software, Customer must return it or certify destruction, and Supplier will refund the License and Support Services Fees received. This is Customer’s sole and exclusive remedy for breach of the exclusive warranty in this Section 7.3.

7.4 Limited Services Warranty and Remedy

Supplier shall provide qualified service providers who perform in a professional and workmanlike manner in accordance with industry standards. The warranty applies only to failures reported within thirty (30) days after Services delivery or acceptance. Supplier’s sole obligation for warranty breach is to remediate within thirty (30) days of written notice or refund any fees paid for the Services.

7.5 Disclaimer of Warranties

Customer expressly understands and agrees that, to the extent permitted by applicable law, the Software and Services are provided on an “AS IS” and “AS AVAILABLE” basis. Except as set forth in this Section 7, Supplier hereby disclaims all warranties, whether express, implied, or statutory, with respect to the Software, Documentation, and Services, including the implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement.

8.1 Supplier’s Obligation

Subject to this Section 8, Supplier will indemnify, defend, and hold harmless at its own expense any suit or action brought against Customer by a third party based on claims that the Software or Services infringe United States intellectual property or trade secret rights, paying costs and damages finally awarded or agreed in settlement specifically attributable to such claims.

Defense and payments are subject to conditions that: (i) Supplier receives prompt written notice of any claim; (ii) Supplier has sole control of defense and settlement negotiations; and (iii) Customer cooperates and, at Supplier’s request and expense, assists in defense.

8.2 Injunction

If Customer’s use of the Software or Services is prevented by injunction or court order due to infringement, or if Supplier believes infringement claims may arise, Customer will permit Supplier to: (i) procure for Customer the right to continue using the Software or Services; or (ii) replace or modify the Software to become non-infringing while providing substantially similar features. Alternatively, Supplier may terminate the Agreement and grant Customer a pro rata refund of unused subscription License Fees, or a refund of the last perpetual License Fee amortized on a five (5) year straight-line basis, upon which the License immediately terminates.

8.3 Exclusions

Supplier has no liability for infringement claims based upon: (i) Software use not in accordance with the Agreement or Documentation; (ii) combining Software with third-party hardware or software not conforming to the specified operating environment; (iii) using any Software release other than the most current; (iv) Software modifications by persons other than Supplier; or (v) instructions, designs, specifications, or materials not furnished by Supplier.

Supplier will not indemnify for claims based on: (1) patents Customer was aware of prior to the Effective Date; or (2) Customer’s pre-Effective Date actions.

11.1 Notice

Except as otherwise provided, all notices must be in writing and are deemed given (i) when delivered by hand with written confirmation of receipt; or (ii) two (2) calendar days after being deposited for delivery with a nationally recognized overnight delivery service, addressed to the appropriate address on the Order Form or to such other address as a party may designate by written notice. All notices to Supplier shall be addressed to the attention of the Legal Department with a copy to legal@kinetica.com.

11.2 Export Compliance

The Services and Software and any derivatives may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not permit users to access or use any Software or Service in a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria, or Crimea) or in violation of any U.S. export law or regulation.

11.3 Relationship of Parties

The parties are independent contractors. Nothing in the Agreement will be deemed to create an agency, employment, partnership, fiduciary, or joint venture relationship between the parties.

11.4 Non-Solicitation

During the term and for twelve (12) months following its expiry or earlier termination, neither party shall directly solicit or approach the other party’s employees or contract staff with a view to: (i) offer such persons employment; (ii) solicit services from them on their own account; or (iii) offer opportunities to perform substantially similar services.

Job postings, newspaper advertisements, and responses to unilateral job inquiries from such persons shall not constitute direct solicitation or breach.

11.5 Government End-Users

The Software and Documentation components are “commercial items” as defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation.” Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software with only those rights set forth herein.

11.6 Anti-Corruption

Customer agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from Supplier’s employees or agents in connection with the Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate this restriction. If Customer learns of any violation, it will use reasonable efforts to promptly notify the Legal Department at legal@kinetica.com.

11.7 Audit Rights

Customer will keep and retain written books and records sufficient to document Customer’s compliance with this Agreement. During the License Term and for two (2) years thereafter, Supplier or its representatives may, upon at least thirty (30) days’ written notice, inspect and audit records, computer systems, and premises of Customer during normal business hours to verify compliance with the Agreement.

11.8 Governing Law and Venue

The Agreement will be governed by the laws of the State of California, excluding any conflict-of-law provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. Any action or proceeding arising from or relating to the Agreement must be brought exclusively in a federal or state court located in Santa Clara County, California.

Each party irrevocably consents to personal jurisdiction and venue in any such court and agrees to service of process. Neither party will bring a legal action more than two (2) years after the cause of action.

11.9 Waiver of Jury Trial

EACH OF SUPPLIER AND CUSTOMER EXPRESSLY, KNOWINGLY, VOLUNTARILY, AND FULLY WAIVES ANY AND ALL RIGHTS TO A JURY TRIAL IN ANY PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT to the extent any such right shall now or hereafter exist.

The parties have read the Agreement, understand it, and agree each has had the opportunity to have it reviewed by legal counsel.

11.10 Waiver, Modification, and Amendment

No failure or delay by either party in exercising any right will constitute a waiver of that right. Any amendment or modification must be in writing signed by both parties.

11.11 Order of Precedence; Construction

Any term or condition stated in Customer’s purchase order or other Customer documentation (excluding Order Forms) is void. In the event of conflict among documents, the order of precedence shall be: (1) the applicable Order Form; (2) this Agreement; and (3) the Documentation.

Section headings are for convenience and will not be used to interpret the Agreement. “Including” means “including but not limited to.”

11.12 Severability

If any provision of the Agreement is held by a court to be contrary to law, the provision is void, and the remaining provisions remain in effect.

11.13 Counterparts

The Agreement may be executed in counterparts, each considered an original, which together constitute one instrument.

11.14 Entire Agreement

The Agreement constitutes the entire agreement between the parties and supersedes all prior or contemporaneous oral or written agreements regarding the subject matter. By signing the Order Form, Customer agrees that (i) the Order Form will be governed by this Agreement’s terms and conditions and (ii) appropriate fees will be timely paid.