These purchase order terms and conditions (“POTC”) are agreed between ___________ (“Buyer”) and NextLabs, Inc. (“Supplier”). This POTC is effective upon Acceptance by Supplier of a purchase order issued by Buyer to Supplier (“PO”) (“Effective Date”) and is incorporated into such PO by reference. Transactions performed under the PO will be conducted in accordance with and be subject to the terms and conditions of this POTC.

1.0 SCOPE OF WORK
Buyer, through the issuance of PO’s, desires to resell the Supplier’s software licenses (“Software”) and support (collectively, “Programs”) specified on the PO to the end users identified in the PO (“Customers”).

2.0 LICENSE GRANT
Limited License Grant. Supplier grants Buyer a non-exclusive, nontransferable limited license to distribute the Programs to Customers, Buyer agrees to distribute Programs only with all documentation and packaging intact and as supplied by Supplier. Restrictions. Buyer shall not, without the prior written consent of Supplier, appoint any third party to promote and/or distribute the Programs or otherwise sublicense its licensed rights hereunder. Buyer shall not, nor authorize any party to (i) modify, adapt, alter, translate, or create derivative works from the Programs; (ii) merge the Programs with other software; or (iii) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Programs. Buyer must not remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of Supplier or its suppliers on or within the copies of the Programs furnished by Supplier to Buyer. Buyer may not copy or reproduce the Programs or any components thereof. Buyer’s Expenses. Buyer shall be solely responsible for any costs and expenses it incurs in connection with its performance under this POTC. Limited License. Buyer’s rights to the Programs will be limited to those expressly granted in this POTC. All rights not expressly granted herein to Buyer are reserved and retained by Supplier and its suppliers. Ownership. Notwithstanding anything to the contrary stated herein, no transfer is made to Buyer of title or ownership of any intellectual property rights in and to Programs. Ownership of all intellectual property rights in and to the Programs is, and shall remain, with Supplier.

3.0 DELIVERY, SUPPLIER LICENSE AGREEMENT, PRICING AND PAYMENT TERMS
Delivery. The delivery of Programs by Supplier shall constitute PO Acceptance. Supplier will use reasonable commercial efforts to meet desired delivery dates, but will not be liable to Buyer in any way for any late delivery. Supplier shall deliver the Programs directly to the Customer indicated on the PO. Partial shipments will be allowed. No returns or exchanges shall be allowed. Supplier Software License Agreement. Supplier will include a copy of Supplier’s Software License Agreement, attached hereto as Attachment A, with each Program Supplier delivers to Customer. Each distribution of the Programs pursuant to the license granted in Section 2.0 above shall be pursuant to Supplier’s License Agreement which each Customer shall Assent to prior to accessing, using or otherwise receiving the Programs. “Assent” means the manifestation by a Customer of certain software that such Customer agrees to be bound by particular contractual provisions, including without limitation, manifestation by (i) traditional signature, (ii) opening or installation of a shrink-wrap software package pursuant to reasonable industry practice or (iii) clicking on an “I agree” button for a “click-on” agreement pursuant
to reasonable industry practice. Pricing and Payment Terms. All pricing relevant to this POTC is set forth in the PO. Buyer agrees to pay Supplier the fees as outlined in the PO within thirty (30) days after receipt of a correct invoice from Supplier.

4.0 BUYER RESPONSIBILITIES
Buyer will:

• Direct the Customer to Assent to the Supplier’s License Agreement. Negotiation of any terms of Supplier’s License Agreement shall take place solely between the Customer and Supplier.
• Invoice the Customer for the applicable fees.
• Pay Supplier invoices for the Programs in accordance with this POTC and the PO.
• Promptly notify Supplier in writing upon its discovery of any unauthorized use or infringement of the Programs or of Supplier’s intellectual property rights with respect thereto.

5.0 WARRANTIES AND INDEMNIFICATION
Each party warrants that it has the full power and authority to enter into and perform this POTC. Supplier warrants to Buyer that, for a period of sixty (60) days after the date of delivery to Buyer of the Software (“Warranty Period”), that the Software will perform in substantial accordance with all on-line help files or written instruction manuals regarding the Use of the Purchase Order Terms and Conditions Software (“Documentation”). Buyer agrees to assist Supplier in arranging for any Customer’s warranty service, i.e., assisting Supplier and Customers to arrange for the repair, replacement, and/or refund by Supplier for Software that does not conform to the foregoing warranty. If the Software does not perform as warranted, Supplier shall undertake to correct the Software, or if the correction of the Software is not reasonably possible, replace such Software free of charge with conforming software. If neither of the foregoing is commercially practicable, Supplier shall terminate this Agreement with respect to the nonconforming program or programs and refund the monies paid by Buyer or Customer attributable to such non-conforming program or programs. The foregoing are Buyer’s and Customer’s sole and exclusive remedies for breach of warranty. The warranty set forth above is made to and for the benefit of Buyer and Customer and shall not apply to nonconformities attributable to: (a) the Software not being properly installed by Buyer or Customer, (b) failure to use the Software at all times in accordance with the License Agreement, Documentation and instructions for such use (“Use”); (c) any modifications, alterations or additions to the Software that are not expressly performed or authorized by Supplier, (d) failure of the Buyer or Customer to maintain the equipment or operating environment for the Software, (e) any act oromission or other cause outside of the control of Supplier, (t) any breach of the License Agreement by Customer, or (g) any third party products. Supplier will have no liability under the warranties set forth above unless it has received written notice from Buyer or Customer of any non-compliance with the warranties which is discovered during the Warranty Period and which is received by Supplier within ten (10) days from the date of discovery. Supplier warrants the Programs to Customers pursuant to the terms and conditions of the License Agreement. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE OR IN THE LICENSE AGREEMENT BETWEEN CUSTOMER AND SUPPLIER, THE
PROGRAMS ARE PROVIDEDSTRICTLY ON AN “AS IS” BASIS. THE EXPRESS LIMITED WARRANTIES SET FORTH ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE PROGRAMS. SUPPLIER EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES OF NON-INFRINGEMENT. SUPPLIER DOES NOT WARRANT THAT THE PROGRAMS WILL MEET ANY CUSTOMER’S REQUIREMENTS OR THAT USE OF THE PROGRAMS WILL BE UNINTERRUPTED OR ERROR FREE. BUYER SHALL MAKE NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, ON BEHALF OF SUPPLIER. Indemnification by Buyer. Buyer agrees to indemnify and hold Supplier harmless from any claims, loss, liability, judgment, damages and any other expense of any kind arising out of any (i)misrepresentations of Buyer employees or agents with respect to the Programs; and/or (ii)the acts or omissions of Buyer, its representatives and agents in distributing the Programs. Third-Party Intellectual Property Rights Indemnification by Supplier. Supplier agrees, at its expense, to either defend or settle any claim against Buyer that the Programs infringe or misappropriate a current United States patent, copyright, trademark or trade secret of a third party and shall indemnify Buyer against any and all damages finally awarded against Buyer, if Buyer provides Supplier with: (i) prompt written notice of the claim; (ii) authority, assistance and information to perform its duties under this Section; and (iii) sole control of the defense and all related settlement negotiations. If Supplier believes that an injunction is likely to be entered prohibiting Buyer from exercising its right to license the Programs under this POTC, then Supplier shall, at its expense, elect to do one of the following: (i) obtain for Buyer the right to continue to license the Programs under the terms of this POTC; (ii) modify the Programs to be noninfringing; (iii) replace the Programs with non-infringing software of substantially the same functionality as the Programs; or (iv) terminate Buyer’s rights and Supplier’s obligations under this POTC with respect to such Programs and refund to Buyer the applicable fees paid for the relevant Programs, amortized on a straight-line basis over a three-year period. Supplier does not assume liability for infringement claims arising from (i) modification of the Programs not made or authorized by NextLabs; (ii) damages brought against Supplier by persons or entities as a result of Buyer’s use of the Programs not in accordance with this POTC; or (iii) the combination, use, or operation of Programs with other products not provided by Supplier if such infringement claims would not have arisen but for such combined use or operation, or (iv) any use of a superseded release of the Programs if Supplier has made available to Buyer a current release of the Programs and the superseded release has not been replaced within six (6) months of delivery by Supplier of the current release. THE FOREGOING THIRD PARTY INTELLECTUAL PROPERTY
RIGHTS INDEMNIFICATION BY SUPPLIER OF THIS SECTION 7.0 STATE BUYER’S SOLE AND EXCLUSIVE REMEDY, AND SUPPLIER’S SOLE AND EXCLUSIVE LIABILITY, REGARDING INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD-PARTY.

6.0 LIMITED LIABILITY
EXCEPT FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, EACH PARTY’S TOTAL LIABILITY UNDER ANY CAUSE OF ACTION OR BASIS OF LIABILITY ARISING UNDER THIS POTC SHALL NOT EXCEED THE Purchase Order Terms and Conditions AMOUNTS RECEIVED BY SUPPLIER FROM BUYER UNDER THIS POTC IN THE TWELVE (12) MONTHS PRECEDING THE RELEVANT CLAIM. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER OR TO ANY OTHER THIRD PARTY, FOR ANY LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY OTHER INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES RESULTING FROM THE USE OF THE PROGRAMS, OR THE FAILURE OF THE PROGRAMS TO PERFORM, OR FOR ANY OTHER REASON OR ARISING UNDER ANY CAUSE OF ACTION, EVEN IF SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, PROVIDED, HOWEVER, THAT THIS LIMITATION SHALL NOT APPLY TO ANY BREACH OF THE CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 8 OR TO BUYER’S EXCEEDING ITS AUTHORITY GRANTED HEREIN. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

7.0 TERM AND TERMINATION
This POTC shall remain in effect until all software Programs have been shipped by Supplier to the Customer, unless terminated earlier for breach pursuant to this Section 7. Either party may terminate this POTC for a material breach of this POTC by the other party. Such termination will be effective at the end of a thirty (30) day written notice period if the Cause remains uncured. Upon termination of this POTC for any reason whatsoever, Buyer’s licenses with respect to the Programs shall terminate, provided that each Customer’s valid license to use the Programs shall survive. Supplier shall not be liable to Buyer for, and Buyer hereby expressly waives all rights to, compensation, indemnities or damages of any kind, whether on account of the loss by Buyer of present or prospective profits, goodwill created, fees or commissions, anticipated orders, expenditures, training costs, investments, commitments made to third parties, or on account of any other potential or actual losses or expenses incurred by Buyer in connection with this POTC. Buyer’s liability for any payments due to Supplier which accrued prior to the termination date shall not be extinguished by termination, and such amounts (if not otherwise due on an earlier date) shall be immediately due and payable on the termination date, regardless of any credit terms which Supplier may have extended to Buyer and regardless of the reason for the termination. The provisions of Sections 2, Ownership, 3, Pricing and Payment Terms, 5, 6, 7 and 8 shall survive the termination of this POTC for any reason.

8.0 GENERAL PROVISIONS
Independent Contractors. The relationship of Buyer to Supplier established by this POTC is that of independent contractors, and nothing contained in this POTC shall be construed to (i) give either party the power to direct and control the day-to-day activities of the other, (ii) constitute the parties as agents, partners, co-owners or otherwise as participants in a joint venture or common undertaking, and/or (iii) allow Buyer to create or assume any obligation on behalf of Supplier for any purpose whatsoever. Governing Law. The rights and obligations of the parties under this POTC shall be governed by and construed under the law of the State of California, without reference to California’s conflict of laws principles. Any suits shall be brought in the federal or state courts in San Mateo County, California. Injunctive Relief. It is expressly agreed that a violation of Section 2.0 of this POTC, Limited License Grant and Restrictions, may cause irreparable harm to Supplier and that a remedy at law would be inadequate. Therefore, in addition to any and all remedies available at law, Supplier may be entitled to seek an injunction or other equitable remedies in all legal proceedings in the event of any threatened or actual violation of any or all of the provisions hereof. Compliance with Applicable Laws. Both parties shall comply with applicable all laws and regulations with respect to (i) the Programs, and (ii) the conduct of business generally. Confidentiality. The terms and conditions of this POTC and the PO shall be subject to the confidentiality terms of the Mutual Non-Disclosure Agreement executed by the parties. Entire Agreement. This POTC, upon Acceptance of the PO by Supplier, sets forth the entire agreement and understanding of the parties relating to the subject matter herein and merges all prior discussions between them. No modification of or
amendment to this POTC shall be effective unless in writing signed by both Parties. Notices. Any notice required or permitted by this POTC shall be in writing, shall be given by means that confirm the date of receipt and recipient of that notice, and shall be sent by express mail, courier, or other reputable delivery service with tracking capability. Any notice shall be deemed effective upon receipt by the addressee, provided it is sent to the address shown on the PO or at such other address for which such party gives notice hereunder. Force Majeure. Nonperformance of either party (except for payment obligations) shall be excused to the extent that performance is rendered impossible by strike, fire, flood, act of God, government acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the control and not caused by the negligence of the nonperforming party. No Waiver. No waiver of any rights under this POTC shall be effective unless in writing signed by the party to be charged. Further, the failure of either party to enforce at any time any of the provisions of the POTC, or the failure to require at any time performance by the other party of any of the provisions of this POTC, will in no way be construed to present a future waiver of such provisions, nor in any way affect the validity of either party to enforce each Purchase Order Terms and Conditions and every such provision thereafter. Assignment. Neither party shall assign this POTC without the prior written consent of the other party, such consent not to be unreasonably withheld. Subject to the foregoing, this POTC shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns. Legal Expenses. The prevailing party in any legal action, arbitration or other dispute resolution procedure brought by one party against the other and arising out of this POTC shall be entitled, in addition to any other rights and remedies it may have, to reimbursement for its expenses, including court costs, arbitrator’s fees and reasonable attorneys’ fees. Severability. In the event that any provision of this POTC becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this POTC shall continue in full force and effect without said provision. The parties agree to negotiate in good faith a substitute, valid and enforceable provision that most nearly effects the parties’ intent and to be bound by the mutually agreed substitute provision. It is understood and agreed that each provision of this POTC which 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 such provision and to be enforced as such. Further, it is expressly understood and agreed that in the vent any remedy hereunder is determined to have failed of its essential purpose, all limitations of liability and exclusions of damages set forth herein shall remain in effect.

Attachment

The NextLabs Sample Software License Agreement is incorporated by reference into this Agreement as Attachment A.