NextLabs, Inc. Software Agreement

11.1 Assignment; Successors and Assigns. Customer may not assign this Agreement, in whole or in part, without the prior written notice of NextLabs, which may be withheld in NextLabs’ sole discretion. NextLabs may freely assign this Agreement without the consent of the Customer. This Agreement will be binding on, inure to the benefit of, and be enforceable by each party and its permitted successors and assigns.

11.2 Waiver, Amendment, Modification. No waiver, amendment or modification, including by custom, usage of trade, or course of dealing, of any provision of this Agreement will be effective unless in writing and signed by both parties. Performance of any obligation required of a party under this Agreement may be waived only by a written waiver signed by a duly authorized officer of the other party; such waiver will be effective only with respect to the specific obligation described therein. No waiver by any party of any breach by the other party of any provision of this Agreement will constitute a waiver of any subsequent breach of the same provision.

11.3 Force Majeure. Neither party will be deemed in default of this Agreement of the extent that performance of its obligations, or attempts to cure any breach, are delayed or prevented by reason of circumstance beyond its reasonable control, including without limitation fire, natural disaster, earthquake, accident or other acts of God (“Force Majeure”), provided that the party seeking to delay its performance gives the other written notice of any such Force Majeure within 15 days after the discovery, and further provided that such party uses its good faith efforts to cure the Force Majeure. This Section will not be applicable to any payment obligations of either party.

11.4 Confidential Information. Each party acknowledges that it may be furnished with or may otherwise receive or have access to information or material that relates to past, present or future products, software (including source code and object code), research development, inventions, processes, techniques, designs or technical information and data, and marketing plans (the “Confidential Information”). Without limiting the generality of the foregoing, Customer agrees that the Software, Documentation and any information relating to the Software or Documentation or any Use or other use thereof is the Confidential Information of NextLabs. Each party agrees to preserve and protect the confidentiality of the Confidential Information and all physical forms, whether disclosed to the other party before this Agreement is signed or afterward. In addition, a party will not disclose or disseminate the Confidential Information for its own benefit or for the benefit of any third party unless otherwise provided in this Agreement. The foregoing obligations do not apply to any information that (a) is publicly known through no fault of the Customer; (b) is given to a party by someone else who is not obligated to maintain confidentiality; or (c) a party had already developed prior to the day this Agreement is signed, as evidenced by documents unless, otherwise provided herein. Neither party will take or cause to be taken any physical forms of Confidential Information (nor make copies of same) without the other party’s written permission. Within three (3) days after the termination of this Agreement (or any other time at the other party’s request), a party will return to the other party all copies of Confidential Information in tangible form. Despite any other provisions of this Agreement, the requirements of this section will survive termination of this Agreement.

11.5 Independent Contractor. Each party acknowledges and agrees that the other party is an independent contractor in the performance of this Agreement and is solely responsible for all of its employees, consultants, contractors and agents and its labor costs and expenses arising in connection therewith. Nothing contained in this Agreement will be deemed to place the parties in the relationship of employer / employee, partners, or joint venturers. Neither party has any right or authority to obligate or bind the other in any manner without the prior written consent of such other party. Each party will be responsible for any withholding taxes, payroll taxes, disability insurance payments, unemployment taxes, and other similar taxes or charges with respect to its activities in relation to performance of its obligations under this Agreement.

11.6 Publicity. The parties agree that, during the term of this Agreement, NextLabs may reveal to third parties that Customer has contracted for the Software with NextLabs. Upon the execution of this Agreement, Customer and NextLabs will issue a mutually agreeable joint press release announcing their business relationship. Neither party shall issue any other press release or make any other public announcement concerning this Agreement. Customer will assist NextLabs in developing a case study describing (a) how Customer uses the Software and (b) the benefits that were derived from the use of the Software (the “Case Study”). Customer agrees that the Case Study may be used in connection with NextLabs’ advertising, promotion and marketing of its business. The parties agree that, during the term of this Agreement, NextLabs may use and reproduce the Customer’s name, trademarks, service marks, trade names, other marketing names and other related textual and graphic materials (the “Customer Logos”) in connection with NextLabs’ advertising, promotion and marketing of its business.

11.7 Cumulative Rights. Except as otherwise expressly stated in this Agreement, any specific right or remedy provided in this Agreement will not be exclusive, but will be cumulative upon all other rights and remedies set forth in this Agreement and allowed under applicable law.

11.8 Governing Law, Jurisdiction. This Agreement will be governed by the laws of the State of California without regard to the conflicts of law provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods. Jurisdiction of any disputes relating to this Agreement shall rest exclusively with the state and federal courts in San Mateo County, California.

11.9 Entire Agreement. The parties acknowledge that this Agreement expresses their entire understanding and agreement with respect to the subject matter hereof, and that there have been no warranties, representations, covenants or understandings made by either party to the other except such as are expressly set forth in this Agreement. The parties further acknowledge that this Agreement supersedes any and all prior agreements, proposals, negotiations, and discussions, written or oral, between the parties with respect to the matters set forth herein.

11.10 Standard Terms of Customer. No terms, provisions or conditions of any purchase order, acknowledgement or other business form that Customer may use in connection with the licensing of the Software will have any effect on the rights, duties or obligations of the parties hereunder, or otherwise modify, this Agreement, regardless of any failure of NextLabs to object to such terms, provisions or conditions.

11.11 Counterparts. This Agreement may be executed in multiple counterparts, any of which will be deemed an original, but all of which will constitute one and the same instrument.

11.12 Attorneys’ Fees. In the event that either party is required to retain the services of any attorney to enforce or otherwise litigate or arbitrate any matter or claim arising out of or in connection with this Agreement, the substantially prevailing party will be entitled to recover from the other party, in addition to any other relief awarded or granted, its reasonable costs and expenses (including attorneys’ fees) incurred in the proceeding.

11.13 Compliance with Law. Both parties agree to comply with all applicable federal, state, and local laws and regulations in performing their duties.

11.14 Severability. In the event that any provision of this Agreement is found invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement will remain valid and enforceable according to its terms. Without limiting the foregoing, it is expressly understood and agreed that each and every provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is intended by the parties to be severable and independent of any other provision and to be enforced as such. Further, it is expressly understood and agreed that in the event any remedy in this Agreement is determined to have failed of its essential purpose, all other limitations of liability and exclusion of damages set forth herein will remain in full force and effect.

11.15 Notices. All notices, demands or consents required or permitted under this Agreement will be in writing and will be delivered, sent by facsimile or mailed certified return receipt requested to the respective parties at the addresses stated above or at any other address the party will specify to the other party in writing. Any notice required or permitted to be given by the provisions of this Agreement will be conclusively deemed to have been received on the day it is delivered to that party by U.S. Mail with acknowledgment of receipt or by any commercial courier providing equivalent acknowledgment of receipt.

11.16 U.S. Government End Users. If Customer is a branch or agency of the United States Government, the following provision applies. The Software and Documentation are comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and are provided to the Government (i) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3.

11.17 Export Laws. The Software and Documentation are subject to U.S. export control laws and may be subject to export or import regulations in other countries. Customer agrees to strictly comply with all such laws and regulations and acknowledges that Customer is responsible for obtaining such licenses to export, re-export, or import as may be required. Customer will indemnify and hold NextLabs harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney’s fees) arising from or relating to any breach by Customer of its obligations under this Section. Customer’s obligations under this paragraph will survive the expiration or termination of this Agreement.