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Master Agreement

PLEASE READ THIS AGREEMENT BEFORE USING AVATIER’S SERVICES. BY ACCESSING OR USING AVATIER’S SOFTWARE VIA A SUBSCRIPTION OFFERING OR RECEIVING ANY SUPPORT AND MAINTENANCE OR PROFESSIONAL SERVICES UNDER THIS AGREEMENT, YOU (“THE CUSTOMER”) SIGNIFY ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICES. IF THE PARTIES HAVE A FULLY EXECUTED AGREEMENT THAT EXPRESSLY GOVERNS ORDERS FOR AVATIER’S SOFTWARE AS A SERVICE OFFERING OR PROFESSIONAL SERVICES, SUCH AGREEMENT SHALL SUPERSEDE THIS AGREEMENT. IN THE EVENT OF AN EVALUATION OF THE AVATIER SOFTWARE, THE SOFTWARE EVALUATION LICENSE AGREEMENT ADDENDUM ATTACHED AS EXHIBIT C SHALL APPLY.

This Master License Agreement (“Agreement”) is entered into between Customer and Avatier Corporation, a California corporation (“Avatier”), with its principal place of business at 4733 Chabot Drive, Suite 201, Pleasanton, CA 94588. Avatier and Customer agree that the following terms and conditions will apply to the licenses and services provided under this Agreement and Orders placed thereunder.

Avatier and Customer agree that the following terms and conditions will apply to the licenses and services provided under this Agreement and Orders attached hereto.

1.   Definitions

a.“Affiliate”is an entity that controls, is controlled by or shares common control with Avatier or Customer, where such control arises from either (a) a direct or indirect ownership interest of more than 50% or (b) the power to direct or cause the direction of the management and policies, whether through the ownership of voting stock by contract, or otherwise, equal to that provided by a direct or indirect ownership of more than 50%.

b.“Documentation”means the written documentation relating to the Software delivered by Avatier to Customer with the Software.

c.“Host” means the computer equipment on which the Software is installed, which is owned and operated by Avatier or its subcontractors.

d.“Order”means the document(s) by which Customer shall order Software licenses and/or services pursuant to this Agreement.  An Order may consist of either (a) a schedule, statement of work, or quotation, that has been signed by both Customer and Avatier, and/or (b) if applicable, a purchase order issued by Customer pursuant to this Agreement that has been expressly accepted in writing by Avatier. Orders placed with a Customer purchase order only and all Orders placed through a Partner shall be governed solely by the terms of this Agreement.

e.“Partner”means a reseller or distributor that has an agreement with Avatier that authorizes them to resell Avatier SAAS Services and/or Professional Services.

f.“Professional Services” means all technical and non-technical services performed or delivered by Avatier under this Agreement, including, without limitation, implementation services and other professional services, training and education services but excluding the SAAS Services and the Support and Maintenance Services.  Professional Services will be provided on a time and materials basis at such times or during such periods as may be specified in a Schedule or statement of work under this Agreement.

g.“SAAS Services” means the specific Avatier internet-accessible services identified in a Schedule that provides use of Avatier’s Software that may be hosted by Avatier or its service provider and made available to Customer over a network on a term-use basis.

h.“Schedule” means a written document attached and incorporated into this Agreement under Exhibit A or similar document executed between the parties for the purpose of making a purchase under the terms and conditions of this Agreement.

  1. “Software”means the Avatier computer software in object code format, and their related materials, which include updates, modifications, new releases, and Documentation as specified in an Order.

j.“Subscription Term” means the period specified in a Schedule during which Customer will have (i) on-line access and use of the Software through Avatier’s SAAS Services; or, (ii) a license to the Software through an on-premises installation.

k.“Support and Maintenance Services” means the support and maintenance services provided by Avatier to Customer pursuant to this Agreement and Exhibit B.

2.     Software License

2.1 During the Subscription Term, Customer will receive a nonexclusive, non-assignable, royalty free, worldwide right to access and use the Software (either provided via SAAS Services or an on-premises license) solely for Customer’s internal business operations subject to the terms of this Agreement and up to the user limits documented in the Schedule.

2.2 Customer acknowledges that under the SAAS Services option Avatier will not be delivering copies of the Software to Customer and that Avatier’s delivery responsibilities are complete when Customer is given access to the Software.

3.   Title and Restrictions

3.1 TitleandCopyright.This Agreement confers no ownership rights to Customer and is not a sale of any rights in the SAAS Services, Software, the Documentation, or any deliverables provided as part of the Professional Services.  Customer does not acquire any rights, express or implied , in the SAAS Services, the Software, the Documentation, or any deliverables provided as part of the Professional Services, other than those rights specified in this Agreement.       Subject to the licenses granted herein, Avatier shall own all right, title and interest in and to the Software, Documentation, and other deliverables provided under this Agreement, including all modifications, improvements, upgrades, derivative works and feedback related thereto and intellectual property rights therein.  Customer agrees to assign all right, title and interest it may have in the foregoing to Avatier.

3.2 Restrictions. Customer shall not, and shall not permit anyone to: (i) copy or republish the SAAS Services or Software, (ii) make the SAAS Services or Software available to any person other than authorized users, (iii) use or access the SAAS Services or Sofware to provide service bureau, time-sharing or other computer hosting services to third parties, (iv) modify or create derivative works based on the Software or Documentation, (v) remove, modify of obscure any copyright, trademark or other proprietary notices contained in the software used to provide the SAAS Services or in the Software or Documentation, (vi) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software used to provide the SAAS Services, except and only to the extent such activity is expressly permitted by applicable law, or (vii) access the SAAS Services or Sofware or use the Documentation in order to build a similar product or competitive product.

4.   Orders andDelivery

4.1 Orders.This Agreement may include an initial Schedule (which shall be attached hereto and incorporates the terms of this Agreement by reference). Customer may purchase additional SAAS Services and/or Professional Services by executing a follow-on Schedule or purchase order as mutually accepted by the parties.  In the event Customer does not issue a purchase orders, a new Schedule shall be executed by Customer and Avatier to evidence such order. A purchase order issued by Customer shall be in writing and identify the SAAS Services, Software or Professional Serivces being ordered, the shipping and invoicing locations, and shall be subject to acceptance by Avatier. Standard or printed terms contained in any purchase order or sales confirmation are deemed rejected and mere commencement of work or payment against such forms shall not be deemed acceptance of the terms.

4.2 Delivery.Avatier shall fulfill Orders by delivering SAAS Services, Software and Documentation via electronic download, subject to the receipt of all required documentation, including any required export and import permits. Customer’s Schedule shall be considered delivered on the date that Avatier emails instructions to Customer for accessing the SAAS Services, Software and Documentation.

5.   Price andPayment

5.1Price.The fees for SAAS Services, Software, Professional Services, and Support and Maintenance Services shall be set forth in a Schedule.  The fees required to be paid hereunder do not include any amount for taxes, duties or import/export fees.  If withheld by a government entity, Customer shall reimburse Avatier and hold Avatier harmless for all sales, use, VAT, excise, property, or other taxes or levies, duties or import/export fees which Avatier is required to collect or remit to applicable tax authorities (including any interest or penalties thereon). Unless Customer provides Avatier with a valid exemption certification from the applicable taxing authority, Customer shall pay to Avatier or its agents the amount of any such tax.

5.2 Payment.Unless otherwise stated in an Order or payment is made through a Partner, Customer agrees to pay Avatier all fees due hereunder net thirty (30) days from date of invoice.  Customer will be invoiced promptly following delivery of the Software or prior to the commencement of any Support and Maintenance renewal period.  All fees are in U.S currency. Customer obligations to pay all accrued charges shall survive the expiration or termination of this Agreement.

6.  Training, Support andMaintenance,andProfessional Services

6.1 TrainingServices.  Avatier will provide training services on a per-quote basis as requested by Customer.   Customer shall approve Avatier’s quote prior to the commencement such training services.  Avatier will invoice Customer monthly as such services are provided. Unless otherwise stated, the training services shall exclude travel and living expenses.

6.2   SupportandMaintenanceServices. Avatier shall provide annual Support and Maintenance Services to Customer in accordance with the terms and conditions of this Agreement and those set forth in Schedule A.  Support and Maintenance Services and associated documentation will be provided in the English language and is included as part of the Subscription Term.

6.3 ProfessionalServices.The following terms and conditions shall apply to professional services (“Professional Services”) supplied by

Avatier to Customer.  Customer may purchase Professional Services from Avatier to be performed on a time and material basis.

a.Scope of Professional Services. Professional Services will be documented in a Statement of Work (“SOW”).  The Software provided under this Agreement is not custom software but is standard commercial software and the scope of Professional Services provided hereunder shall consist solely of (i) program planning, (ii) Software deployment assistance, (iii) interface adapter efforts, and/or (iv) formal or non-formal software training. Professional Services provided to Customer by Avatier shall not constitute works for hire.

b.Term of Professional Services. Professional Services will begin and terminate on the dates or times defined in a SOW which has been mutually agreed to by Customer and Avatier in writing, unless earlier terminated in accordance with this Agreement.

c.Fees and Expenses.  Fees for Professional Services are defined in a SOW or purchase order.   Invoices may be published on a monthly basis for Professional Services actually performed or in accordance to the payment schedule mutually agreed to and documented in the SOW or Order.  Professional Services fees exclude reasonable expenses for travel, food and lodging, directly related to the performance of Professional Services.  All actual and reasonable expenses for travel, food and lodging, directly related to the performance of Professional Services shall be paid by Customer.

d.Termination or delay of Professional Services.  Professional Services may be terminated by Customer by giving ten (10) days prior written notice to Avatier; termination shall be effective ten (10) days after Avatier’s receipt of such notice.  If Customer delays the scheduled start of contracted Professional Services, Customer shall reimburse Avatier for any actual non-refundable costs incurred due to such delay.  If Customer terminates Professional Services before the end of the Term of Professional Services engagement, Customer shall pay Avatier for Professional Services completed prior to the effective termination date and reasonable and actual subcontractor costs incurred by Avatier as a result of such delay or termination.

e.Avatier Proprietary Information.  All Avatier Proprietary Information and all right, title and interest, including without limitation, all patents, copyrights, and trade secret rights anywhere in the world, and all other intellectual property and rights in connection therewith shall be the sole property of and remain with Avatier or its licensors, as applicable.  Avatier Proprietary Information includes, but is not limited to, Software and related documentation and any modifications thereto developed in whole or in part by Professional Services. Except for the license use rights otherwise expressly provided in this Agreement, no right, title or interest in Avatier Software is granted hereunder.

f.Independent Contractors.  Avatier is an independent contractor and is solely responsible for all taxes, withholdings, and other similar statutory obligations including, but not limited to Worker’s Compensation Insurance.  Nothing herein shall form or be construed to form a joint venture or partnership.

g.Performance Standards.   Avatier’s performance of Professional Services under this Agreement will be conducted with standards of practice common in the industry for such services.  Avatier will comply with all applicable laws and Customer privacy, customer information, network and safety rules, guidelines and policies, in the course of performing Professional Services.

h.Consent to Subcontract.  Customer hereby consents for Avatier to subcontract Professional Services to persons or companies qualified

and certified by Aviater to provide services on Avatier’s behalf.

7.   Software Warranty andConditions. 

7.1 SoftwareWarranty.   Avatier warrants that the Software will materially conform to the accompanying Documentation.  If the Software does not materially conform to the Documentation, then Customer’s exclusive remedy under this provision will be to have Avatier, at Avatier’s expense and option, either repair or replace the Software, or refund any pre-paid subscription fees paid by Customer for the portion of the Subscription Term that has not been used by Customer.  If refunded, Customer’s Subscription Term shall terminate and its access to the Software will cease.  Avatier does not warrant that the operation of the Software will be uninterrupted or error free, or that all Software defects can be corrected.  This warranty shall not apply if: (a) the Software is not used in accordance with Avatier’s instructions; or, (b) the Software defect has been caused by any of Customer’s malfunctioning equipment or Customer provided software; or (c) Customer has made modifications to the Software not expressly authorized in writing by Avatier.

7.2 WarrantyDisclaimer.THISWARRANTYISINLIEUOFALLOTHERWARRANTIESANDISTHE ONLYWARRANTY GRANTED BY AVATIERWITH RESPECT TO THE SOFTWARE, SAAS SERVICES,DOCUMENTATION, SUPPORT AND MAINTENANCE, OR THE PROFESSIONAL SERVICES. THERE ARENO OTHER EXPRESSOR IMPLIED WARRANTIES OR CONDITIONS,ORAL OR WRITTEN,INCLUDINGTHOSE OF MERCHANTABILITYORFITNESSFOR APARTICULAR PURPOSE,SATISFACTORY QUALITY,REGARDING THIS AGREEMENT OR ANY SOFTWARELICENSED HEREUNDER.  AVATIER DOESNOTWARRANTY UNINTERUPTEDOR ERROR-FREE OPERATIONOFTHE SOFTWARE.

8.   IntellectualPropertyIndemnification. Avatier shall hold Customer harmless from liability to third parties resulting from infringement by the Software of any United States patents issued before delivery of such Software or any copyright or misappropriation of any trade secret, provided Avatier is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement.  Avatier will not be responsible for any settlement it does not approve in writing.

The foregoing obligations do not apply with respect to Software or portions or components thereof (i) not supplied by Avatier, (ii) made in whole or in part in accordance to Customer specifications, (iii) that are modified by Customer (iv) combined with other products, processes or materials where the alleged infringement relates to such combination which were unauthorized by Avatier,  (v) where Customer continues use of the infringing Software following Avatier’s supplying a modified, amended or replacement version of the Software, or (vi) where Customer’s use of such Software is not strictly in accordance with this Agreement.  Customer will reimburse Avatier for any reasonable out of pocket expenses incurred by Avatier if the cause of the infringement is attributable to Customer’s actions as stated in this paragraph. In the event of such a claim, action or allegation being brought or threatened or in the event an injunction is issued or threatened, Avatier may, at its option and expense, either procure for Customer the right to continue to use the Software, modify or replace the Software so as to avoid infringement, or accept the return of the infringing Software and return the license fee paid for such infringing Software.

THE PROVISIONS OF THIS SECTION SET FORTH AVATIER’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS AND/OR PROPRIETARY RIGHTS OF ANY KIND.

9.  Limitation of Liability

9.1LiabilityLimit.EXCEPT AS STATED BELOW, IN NO EVENT SHALL EITHER PARTY (INCLUDING SUCH PARTY’S SUBCONTRACTORS, AGENTS, SUPPLIERS, DIRECTORS OR EMPLOYEES) BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT, RELIANCE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) WHETHER ARISING FROM CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS STATED BELOW, IN NO EVENT SHALL EITHER PARTY’S TOTAL CUMULATIVE LIABILITY PURSUANT TO THIS AGREEMENT EXCEED THE FEES PAID AND/OR PAYABLE BY CUSTOMER TO AVATIER UNDER THIS AGREEMENT FOR THE SERVICES AT ISSUE DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

9.2 Exceptions. NOTWITHSTANDING  THE  FOREGOING,  THE  LIMITATIONS  OF  LIABILITY  SET  FORTH  IN  THIS  SECTION

SHALL NOT APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS PURSUANT TO THIS AGREEMENT OR A BREACH OF THE PROVISIONS OF SECTION 3, OR, (II) CLAIMS FOR DEATH, BODILY INJURY OR DAMAGE TO TANGIBLE PROPERTY CAUSED BY THE NEGLIGENCE OF SUCH PARTY OR ITS EMPLOYEES, SUBCONTRACTORS OR AGENTS.

10.Confidentiality

10.1TreatmentofConfidentialInformation.Each party acknowledges that in the course of this Agreement it may be entrusted with information from the other and agrees that it shall use commercially reasonable efforts to protect the confidentiality thereof.   “Confidential Information” means all information disclosed by one party (“disclosing party”) to the other party (“receiving party”), before or after the date of this Agreement, and generally not publicly known, whether tangible or intangible and in whatever form or medium provided, as well as any information generated by the receiving party to the extent that it contains, reflects, or is derived from Confidential Information.  Confidential Information of Avatier includes, without limitation, the Software and Documentation.  The terms and conditions of this Agreement are Confidential Information; however, the existence of this Agreement is not Confidential Information.  The receiving party shall retain the Confidential Information of the disclosing party in confidence and shall use and disclose it solely for the purpose of, and in accordance with, this Agreement. The receiving party shall only disclose Confidential Information of the disclosing party to those of its employees with a need to know such Confidential Information and who have been informed of the obligations of confidence and have agreed in writing to preserve the confidentiality of such information under terms and conditions no less restrictive than those set forth herein.   The receiving party shall use the same degree of care as it uses to protect its own confidential information of a similar nature, but no less than reasonable care, including, without limitation, securing all servers, drives or media on which the Confidential Information, Software and Documentation are installed or maintained to prevent the unauthorized use or disclosure of Confidential Information.  For avoidance of doubt, the terms of this Agreement and the fees identified in a schedule or Order are Confidential Information.

10.2Exclusions.   The receiving party shall not be bound by any obligations restricting disclosure and use set forth in this Agreement with respect to Confidential Information, or any part thereof, which; (i) was lawfully known to the receiving party prior to disclosure; (ii) was lawfully in the public domain prior to its disclosure, or becomes publicly available other than through a breach of this Agreement; (iii) was disclosed to the receiving party by a third-party, provided that such third-party is not in breach of any confidentiality obligation in respect of such information; or (iv) is independently developed by the receiving party.

10.3RequiredDisclosure. If the receiving party is compelled pursuant to legal, judicial, or administrative proceedings, or otherwise required by law, to disclose Confidential Information, the receiving party shall use reasonable efforts to (i) seek confidential treatment for such Confidential Information, and (ii) provide prior notice to the disclosing party to allow the disclosing party to seek protective or other court orders.

11. TermandTermination

11.1Term.This Agreement shall commence on the Effective Date and shall continue in effect unless terminated as set forth herein.  Unless otherwise agreed to in a Schedule, the Subscription Term will renew automatically upon expiration provided that Avatier provides Customer at least ninety (90) days prior written notice of such renewal and Customer does not provide its intention to terminate the SAAS Services on or before the commencement of the renewal Subscription Term.  Unless otherwise agreed to by Avatier, Customer may not reduce the number of licenses for a renewal of a Subscription Term.

11.2Termination. This Agreement, or a license granted hereunder, may be terminated (i) by mutual agreement of Avatier and Customer, (ii) by either party if the other party commits a material breach of this Agreement (including Customer’s failure to pay an invoice when due) and fails to cure such breach within thirty (30) days following receipt of breach notice, or (iii) by either party if the other party becomes insolvent or is adjudged as bankrupt; makes an assignment for the benefit of creditors; has a receiver appointed; or files a petition of bankruptcy.  Termination shall not relieve Customer of its obligation to pay any amounts due upon the date of termination.

11.3EffectofTermination. Upon termination of this Agreement or expiration of a Subscription Term, Avatier shall cease providing the SAAS Services and/or any Professional Services to Customer and any on-premises subscriptions to the Software shall cease.  Upon termination, Customer shall immediately pay all amounts due to Avatier.  If the termination is due to an uncured breach of the Agreement by Avatier, Avatier shall immediately refund to Customer all pre-paid amounts for any unperformed Subscription Term and/or Professional Services.

11.4Survival.Upon termination of this Agreement, all of the parties’ respective rights and obligations hereunder shall cease, except that Sections entitled: “Title and Restrictions”, “Payment”, “Warranty Disclaimer”, Intellectual Property Indemnification”, “Limitation of Liability”, “Confidentiality”, “Effect of Termination”, and “General” Sections of this Agreement, shall survive such termination.

12. General

12.1U.S.GovernmentRestrictionRights.The Software is provided with “RESTRICTED RIGHTS.” Use of the Software by the U.S. Government constitutes acknowledgment of Avatier’s proprietary rights in it.  The Software is a “commercial item” under FAR 12.201. Consistent with FAR section 12.212 and DFARS section 227.7202, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Software or Documentation by the U.S. government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted herein.

12.2 Open Source Software. Customer acknowledges that the Software may contain open source software.  Open source software may be identified in the Documentation or in a list of the open source software provided to Customer upon Customer’s written request.  Any open source software that is delivered to Customer as part of the Software, and which may not be taken out of the Software or used separately from the Software is covered by the warranty, support and indemnification provisions applicable to the Software.  Avatier’s provision of open source software shall not impose any additional restrictions or requirements on Customer’s use of the Software.

12.3Regulatory/ExportCompliance.Customer acknowledges and agrees that the Software products are subject to the export control laws, rules, regulations, restrictions and national security controls of the United States and other applicable foreign agencies (the “ExportControls“), and agrees not to export or re-export, or allow the export or re-export of the Software products or any copy or portion thereof in violation of the Export Controls. Customer hereby represents that (i) Customer is not an entity or person to which shipment of Software products is prohibited by the Export Controls; and (ii) Customer will not export, re-export or otherwise transfer the Software products to (a) any country subject to a United States trade embargo, (b) a national or resident of any country subject to a United States trade embargo, (c) any person or entity to which shipment of Software products is prohibited by the Export Controls, or (d)  anyone who is engaged in activities related to the design, development, production, or use of nuclear materials, nuclear facilities, nuclear weapons, missiles or chemical or biological weapons.

12.4Severability.Should any provision of this Agreement be invalid, ineffective, or unenforceable, under present or future laws, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired or invalidated.

12.5Notice.Notices to either Party shall be in writing to the address indicated in this Agreement (or as later amended) and deemed effective when received.

12.6Assignment. Neither party shall assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party and any such prohibited assignment shall be null and void.  Notwithstanding the foregoing, (a) either party may assign this Agreement to any party that acquires all or substantially all of its related business by merger, sale of stock or assets, or a similar transaction, and (b) Avatier may subcontract its obligations hereunder to a third party, provided that Avatier shall remain liable for any breach thereof.

12.7EntireAgreement.This Agreement and the schedules or exhibits attached hereto or incorporated by reference, constitute the entire agreement between the parties on the subject matter hereof and supersede all prior agreements, communications and understandings of any nature whatsoever, oral or written including any shrink wrap license included with the Software. This Agreement may not be modified or waived orally and may be modified only in writing signed by duly authorized representatives of each party.

12.8GoverningLaw.  This Agreement shall be governed by the laws of the State of California without regard to conflicts of law principles.

12.9InjunctiveRelief;Attorneys’Fees.  Each party acknowledges and agrees that in the event of a material breach of this Agreement, including but not limited to a breach of the “Title and Restrictions” or “Confidentiality” Sections of this Agreement, the non-breaching party shall be entitled to seek immediate injunctive relief, without limiting its other rights and remedies.  If any legal action is brought to enforce any rights or obligations under this Agreement, the prevailing party shall be entitled to recover its reasonable attorney fees, court cost and other collection expenses, in addition to any other relief it may be awarded.

12.10 ForceMajeure.Each party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, communication line failures, and power failures. Nothing in the foregoing shall be deemed to relieve Customer or its Affiliates of its obligation to pay fees owed under this Agreement.

12.11  DeploymentVerification.  Upon reasonable advance notice to Customer and on a non-interference basis with Customer’s normal business operations, Avatier has the right to verify the quantity of Software Customer has placed into use under this Agreement.  Such verification shall not be conducted more frequently than once per year unless agreed otherwise in a Schedule.

12.12Counterparts.  This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one Agreement.

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SCHEDULE A SUPPORT AND MAINTENANCE

1. Support andMaintenance Services

Customer shall be entitled to purchase Support and Maintenance Services at an annual rate as stated in Section 4 below.  Support and Maintenance

Services entitles Customer to the following:

(a)Telephone or electronic support in order to help Customer locate and correct problems with the Software.

(b)    Bug fixes and code corrections to correct Software malfunctions in order to bring such Software into substantial conformity with the operating specifications.

(c)All extensions, enhancements and other changes that Avatier, at its sole discretion, makes or adds to the Software and which

Avatier furnishes, without charge, to all other licensees of the Software who are enrolled in Software Support and Maintenance.

(d)    Replacement of the Software at no charge if the media becomes destroyed or damaged so that the Software becomes unusable.

(e)    Automatic emails from the Avatier Software to the Avatier Support and Maintenance system.

1.1  Non-Avatier problems.  If it is determined by Avatier that the problem reported by Customer is due to a non-Avatier issue, including but not limited to configuration of Customer’s Microsoft Windows Active Directory, Windows Server, Windows IIS settings, Microsoft SQL, Windows or Mac Workstations, Browser, Network equipment, or Network settings, Avatier shall advise Customer and Customer shall be invoiced by Avatier at its current hourly rate to resolve such issues.

2.ResponseandResolution Goals

ï“business hours” coverage (Monday-Friday, 5am-5pm PST / PDT excluding U.S. Holidays)

ï“Problem” means a defect in Software as defined in Avatier’s standard Software specification which significantly degrades such

Software.

ï“Fix” means the repair or replacement of Software component in the form of a patch or e-fix to remedy Problem.

ï“Workaround” means a change in the procedures followed or data supplied by Customer to avoid a Problem without substantially impairing Customer’s use of the Software.

ï“Respond” means acknowledgement of Problem received containing assigned support engineer name, date and time assigned, and severity assignment.

Problem Severity ResponseGoals ResolutionGoals
1.The production system or Avatier application is down or seriously impacted and there is no reasonable workaround currently available. Avatier will Respond within 2 business hours for Standard Support or 1 clock hour for Premium Support. Upon confirmation of receipt, Avatier support personnel begins continuous work on the Problem, and a customer resource must be available at any time to assist with problem determination. Avatier will provide commercially reasonable efforts for Workaround or Fix within 24 Business Hours, once the Problem is reproducible or once we have identified the Software defect. Avatier may incorporate Fix in future release of software.
2.The system or Avatier application is seriously affected. The issue is not critical and does not comply with the Severity 1 conditions. There is no workaround currently available or the workaround is cumbersome to use. Avatier will Respond within 4 business hours for Standard Support or 2 business hours for Premium Support. Avatier will provide commercially reasonable efforts for Workaround or Fix within 7 business days, once the Problem is reproducible or once we have identified the problem as a Software defect. Avatier may incorporate fix in future release of software.
3.The system or Avatier application is moderately affected. The issue is not critical and the system has not failed. The issue has been identified and does not hinder normal operation, or the situation may be temporarily circumvented using an available workaround. Avatier will Respond within 8 business hours. Avatier will provide commercially reasonable efforts for Workaround or Fix within 10 business days, once the Problem is reproducible or once we have identified the problem as a Software defect. Avatier may incorporate Fix in future release of software.
4.Non-critical issues, functionality does not appear to match documented specifications. Avatier will Respond within 12 business hours. Resolution of Problem may appear in future release of software.

3.Accessing Support

Avatier offers several ways to resolve any technical difficulties.  In addition to online help in the Software, which can be accessed by clicking the

“Help” tab when logged into the Software, function-specific help information can also be accessed throughout the Software using the ‘?’ option.The online knowledgebase (http://Support.Avatier.com) is available 24×7 for self-service technical assistance including:

  • Downloading software updates

ï    Viewing updates to supported platforms and hardware

ï    Accessing our product documentation, technical articles, and FAQs

ï    Viewing supported platforms and hardware’

ï    Support Policy documentation

Our online community portal (https://Community.Avatier.com) is available 24×7 and is used to manage your cases and includes:

ï    Logging tickets and viewing status of previously submitted tickets

ï    Submitting new product enhancements (Ideas)

ï         Participation in the community through moderated discussion forums

The support email address is [email protected].  The support phone number is (925) 217-5170.

4. Scope ofCoverage.The same level of Support and Maintenance Services shall apply to all licensed Software at the installation site and Customer shall keep all licensed Software it has acquired at an installation site under current contracted Support and Maintenance Services in order to receive the maintenance update services.

Exhibit C

Avatier Corporation (“Avatier”)
Software Evaluation License Agreement Addendum

BY ACCESSING, DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THE AVATIER SOFTWARE AND DOCUMENTATION THAT ACCOMPANY THIS AGREEMENT (THE “SOFTWARE”), YOU ARE AGREEING TO ALL OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MAY NOT ACCESS, DOWNLOAD, INSTALL, COPY OR USE THE SOFTWARE.

INTERNAL EVALUATION USE ONLY: Your use of the Software is limited to internal evaluation purposes only. Deployment in a production capacity or external exposure of works which use the Software is not permitted under the terms of this Agreement. You must acquire a production license for the Software from Avatier in order to deploy such works. Contact your Avatier sales representative for more information.

  1. LICENSE GRANTS  Subject to all the terms of this Agreement, Avatier hereby grants to you a one-time, royalty-free, non-exclusive, non-transferable, non-sublicenseable license to copy and use the Software solely for internal evaluation purposes for a period of THIRTY (30) DAYS from your first access, download, installation, or use of the Software (“Evaluation Period”). You may (i) access, download, install, and copy the Software on a reasonable number of development systems within your company; and (ii) use the Software only for internal evaluation purposes.
  2. LICENSE OBLIGATIONS  You agree that you shall not:
    (i) reverse compile, reverse engineer, disassemble, reformat, or otherwise attempt to read or make readable the object code or source code (or the underlying ideas, algorithms, structure or organization) of the Software, in whole or in part;
    (ii) modify the Software or create any derivative work based on the Software;
    (iii) rent, lease, sell, sublicense, grant a security interest in, or otherwise transfer any rights in the Software;
    (iv) remove or alter any marks or proprietary notices or labels contained in the Software;
    (v) use the Software in any manner that violates any intellectual property or privacy rights of any third party; or
    (vi) use the Software in any manner that violates any applicable international, federal, state or local law or regulation.
  3. TITLE  Avatier and its suppliers retain all right, title and interest in and to the Software, including, without limitation, all copyrights, trademarks, patents, trade secrets, proprietary and other intellectual property rights contained in or associated with the Software, all copies thereof, and all enhancements or modifications thereto.

4. WARRANTY; LIMITATION OF LIABILITY
The Software is provided “AS IS” and without any warranty of any kind. AVATIER DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE. The Software is provided gratuitously and, therefore, Avatier shall not be liable or obligated to you or any other party with respect to any subject matter of this Agreement for any direct, indirect, incidental, special, punitive or consequential damages under any theory of liability whether in tort, contract, negligence, strict liability or otherwise even if advised of the possibility of such damages.

5. TERMINATION; SURVIVAL
The license granted hereunder shall terminate at the earliest of (i) the end of the specified Evaluation Period, if any; (ii) immediately upon your failure to comply with all of the terms and limitations described herein; or (iii) immediately upon written notice of termination by Avatier, with or without cause. Upon termination for any reason, you shall destroy all copies of the Software. Sections 2, 3, 4, 5, and 6 of this Addendum shall survive any termination or expiration of this Agreement or the license granted hereunder.

6. EXPORT REQUIREMENTS
The export and re-export of certain software products are controlled by the local and international export control laws and such software may not be exported or re-exported to any country which has been barred from receiving such goods. In addition,  Avatier software may not be distributed to persons on the Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals if so designated by the United States government.

By downloading or using an Avatier software product you are certifying that you are not a national of any country to which the United States or your country of origin embargoes goods and that you are not a person on the Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals.

7. GENERAL
(a) This Agreement is the entire agreement between you and Avatier concerning this subject matter. This Agreement may not be amended except in writing signed by an authorized representative of Avatier. (b) Neither this Agreement nor any of your rights or obligations hereunder may be assigned by you in whole or in part without Avatier’s prior written consent. (c) This Agreement shall be governed by and interpreted in accordance with the laws of the State of California without giving effect to its choice of law principles.  The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is expressly disclaimed. (d) The prevailing party in any action or proceeding to enforce the provisions of this Agreement shall be entitled to recover all reasonable attorneys’ fees and expenses incurred in connection therewith. (e) In the event of a breach of this Agreement, monetary damages may not be a sufficient remedy, and Avatier shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief (without posting of a bond) as may be deemed proper by a court of competent jurisdiction. (f) If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, that provision shall be limited or eliminated to the minimum extent necessary so that the remaining provisions remain in full force and effect. (g) The failure of Avatier to require your performance of any provision herein shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by Avatier of a breach of any provision herein be taken or held to be a waiver of the provision itself.