Enterprise Software License Agreement

Subject to Customer's timely payment of all Fees and compliance with all the terms and conditions of this Agreement, Nirmata grants to Customer and its Authorized Users a non-exclusive, non-transferable, non-sublicensable, revocable, limited license to install and use the products listed in Exhibit B ("Products") and to use the documentation provided to Customer by Nirmata ("Documentation") solely for the Customer's Business Purposes during the License Term and in accordance with the Licensed Capacity as set forth in the applicable Order Form(s) ("License").

Customer and Customer's Authorized Users shall not do any of the following, and shall not allow or assist any parent, subsidiary, Affiliate, agent or other third party to do any of the following, which are prohibited actions not included in the License:

1. Sell, lease, license, distribute, sublicense or otherwise transfer in whole or in part, any Products or the Documentation to a third party;
2. Decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code from the Products, in whole or in part, or otherwise attempt to discover or duplicate any technology, routines, algorithms, methods or underlying ideas or designs included in the Products;
3. Use any mechanical, electronic or other method to trace, decompile, disassemble, or identify the source code of the Products or encourage others to do so;
4. Allow access to or permit use of the Products by any users other than Authorized Users;
5. Create, develop, license, install, use, or deploy any third-party software or services to circumvent, enable, modify or provide access, permissions or rights which violate the technical restrictions of the Products;
6. Copy, reproduce, publish, distribute, or redistribute any of the Products, in whole or in part, to any person who is not an Authorized User;
7. Modify the Products or create derivative works based upon the Products;
8. Remove any Product identification, trademark, proprietary logo, copyright or other notices contained in the Products or the Documentation;
9. Make or attempt to make any commercial use or exploitation of the Products;
10. Use the Products to collect or harvest any personally identifiable information of any person;
11. Disclose the results of any benchmark test of the Products to any third party without Nirmata's prior written approval;
12. Use the Products to create multiple accounts under false or fraudulent pretenses;
13. Use the Products to create or transmit unsolicited electronic communications;
14. Use the Products to transmit any harmful code sequence or routine;
15. Use the Products to violate the security of any computer network, to crack passwords or security encryption codes, or to transfer or store illegal material;
16. Claim the Products as Customer's property, creation, or work of authorship, in whole or in part;
17. Contest or dispute Nirmata's ownership of the Products or any Intellectual Property Rights applicable thereto;
18. Use the Products after the termination date of this Agreement; and/or
19. Use the Products in any manner not authorized by this Agreement.

CUSTOMER UNDERSTANDS, ACKNOWLEDGES, AND AGREES THAT ANY VIOLATION OR SUSPECTED VIOLATION OF THE FOREGOING LICENSE RESTRICTIONS BY LICENSEE OR ONE OF ITS AUTHORIZED USERS MAY CONSTITUTE GROUNDS ON WHICH NIRMATA MAY, IN ITS SOLE DISCRETION, SUSPEND OR TERMINATE CUSTOMER'S OR ANY AUTHORIZED USER'S ACCESS TO THE PRODUCTS, IN ADDITION TO ALL OTHER REMEDIES AVAILABLE TO NIRMATA AT LAW OR EQUITY.

The open source components of the Products, if any, are licensed to Customer under the terms of the applicable open source licenses listed in the open_source_licenses file or in the Documentation accompanying the Products. Copyrights to the Open Source Software are owned by their respective third-party copyright holders.

Customer agrees to provide Nirmata with the cooperation, materials, information, access and support which Nirmata deems to be reasonably required to allow Nirmata to successfully provide the Services. Customer understands and agrees that Nirmata's obligations hereunder are expressly conditioned upon Customer's provision of such cooperation, materials, information, access and support.

Unless explicitly stated in the Order Form, all tangible work product that results from Nirmata's Services (collectively "Results and Proceeds") is proprietary to Nirmata, and all Results and Proceeds shall remain the sole and exclusive property of Nirmata.

Without limitation of Nirmata's other rights or remedies, if Customer fails to pay the Fees when due, then Nirmata may suspend or terminate any Order Form, the License, or this Agreement by written notice to Customer. All payments shall be made in U.S. dollars in immediately available funds, and are non-refundable once paid, except as otherwise explicitly provided hereunder. Any amounts not paid when due shall bear interest at the rate of one percent (1%) per month or the maximum rate allowed by law, whichever is less. If not otherwise specified, payments will be due within thirty (30) days of invoice.

Customer shall pay any sales, use, value-added, property, and other taxes, withholdings and similar charges based on or arising from this Agreement (other than U.S. taxes based on Nirmata's net income).

Each Party represents and warrants that: (a) such Party is duly organized, validly existing, and in good standing under the laws of the state of its organization, and has the full corporate power and authority to enter into and perform its obligations under this Agreement; (b) the execution of this Agreement by such Party, and the performance by such Party of its obligations and duties hereunder do not and will not violate any other agreement to which such Party is bound; and (c) when executed and delivered by such Party, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such party in accordance with its terms.

Customer represents and warrants (a) that Customer shall abide by the terms of the License as stated herein, including all restrictions on the License; (b) that Customer shall not use the Nirmata Software in any manner not permitted under this Agreement; (c) that Customer and its licensors, if applicable, have and retain all rights, title and interest in and to all Customer Data provided to Nirmata and/or processed through the Nirmata Software; and (d) that the Customer Data does not infringe or violate any Intellectual Property Rights of any third party.

Nirmata represents and warrants (a) that the Nirmata Software shall perform in accordance with its Documentation if used in compliance with this Agreement; and (b) all Services provided under this Agreement will be performed in a professional manner and in accordance with the terms and conditions in this Agreement and the applicable Order Form.

ASIDE FROM NIRMATA'S EXPLICIT REPRESENTATIONS AND WARRANTIES AS STATED ABOVE, NIRMATA DISCLAIMS ALL OTHER WARRANTIES IN REGARD TO THE NIRMATA SOFTWARE, EITHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NIRMATA DOES NOT WARRANT THAT THE NIRMATA SOFTWARE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE, OR THAT IT SHALL MEET ALL OF CUSTOMER'S NEEDS AND EXPECTATIONS. NIRMATA OFFERS THE NIRMATA SOFTWARE "AS IS" AND "WITH ALL FAULTS," AND CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT, ASIDE FROM NIRMATA'S EXPLICIT WARRANTIES, CUSTOMER ASSUMES ALL RISK IN REGARD TO CUSTOMER'S USE OF AND ACCESS TO THE SOFTWARE UNDER THIS AGREEMENT, INCLUDING THE RISK OF LOSS OF ANY CUSTOMER DATA.

If Nirmata and Customer have previously entered into a mutual non-disclosure agreement that remains in effect as of the date hereof (a "Pre-existing NDA"), the terms of such Pre-existing NDA are incorporated herein by this reference and are operative in addition to the confidentiality provisions herein.

Each Party acknowledges that it may be a disclosing Party and a receiving Party simultaneously. A receiving Party shall safeguard and preserve the Confidential Information of the disclosing Party with the same level of security and confidentiality that it uses for its own Confidential Information, and in no event shall a receiving Party act with less than reasonable care in safeguarding a disclosing Party's Confidential Information. Neither Party will use the other Party's Confidential Information for any purpose other than to exercise its rights and obligations under this Agreement.

A receiving Party shall use the disclosing Party's Confidential Information only within the scope of exercising its rights and obligations under this Agreement. The Parties agree that a receiving Party may not reproduce or keep an archival copy of Confidential Information of a disclosing Party, and that a receiving Party is obligated to return or destroy Confidential Information within seven (7) days of receiving a request for return or destruction from the disclosing Party.

The Parties acknowledge and agree that the Products and all Nirmata Software constitute Confidential Information of Nirmata. Customer may disclose relevant aspects of the Product to its employees and contractors if necessary to Customer's evaluation, provided that the Product is not used, disclosed, or distributed by such employees or contractors in violation of this Agreement. Results of tests run by Customer may be disclosed to third parties only with Nirmata's prior written consent.

The following shall not constitute Confidential Information: (i) information previously known to the receiving Party under circumstances free of any obligation of confidentiality; (ii) information that has become publicly known through no wrongful act by a receiving Party; (iii) information disclosed to a receiving Party by a third party who is under no obligation of confidentiality to the disclosing Party; or (iv) information independently developed by a receiving Party without use of Confidential Information of the disclosing Party.

If a disclosing Party becomes aware that a receiving Party has breached its confidentiality obligations under this Agreement, or if a disclosing Party has a reasonable basis for a belief that a breach is imminent, the disclosing Party may seek, in addition to other remedies, injunctive relief without the obligation of posting a bond in advance of issuance of such injunctive relief.

Nirmata shall indemnify, hold harmless and defend Customer and its representatives against any costs and expenses, losses, and damages arising out of or in connection with any third-party claim brought against Customer asserting that the Products and/or Services infringe any Intellectual Property Right of such third party, provided that (i) Customer notifies Nirmata in writing no later than thirty (30) days after Customer's notice or awareness of any potential claim; (ii) Customer permits Nirmata to defend, compromise or settle the claim; and (iii) Customer gives Nirmata all available information, reasonable assistance, and authority to enable Nirmata to do so. Nirmata shall reimburse Customer for its costs and expenses under this section as they are incurred.

If a third-party infringement claim is made or appears likely to be made, Nirmata will either (a) procure for Customer the right to continue exercising the License; or (b) replace or modify the Products and/or Services to make them non-infringing; or, if neither (a) nor (b) are commercially feasible, (c) terminate this Agreement and refund to Customer, on an appropriate pro rata basis, all corresponding fees paid to Nirmata. The foregoing is Nirmata's entire obligation to Customer and Customer's exclusive remedy regarding any claim of infringement.

Nirmata will have no liability for any claim of infringement based upon Customer's: (a) unauthorized modification of the Products and/or Services; (b) use of the Products other than in accordance with this Agreement, or in combination with other software or equipment not provided by Nirmata if such infringement would not have occurred without such combination; or (c) continuing the allegedly infringing activity after notice from Nirmata.

Customer shall indemnify, hold harmless and defend Nirmata and its representatives against any costs and expenses, losses, and damages, including reasonable and directly related attorney's fees, arising out of or in connection with any third-party claim brought against Nirmata which results from or arises out of a breach of this Agreement by Customer, provided that (i) Nirmata promptly notifies Customer in writing; (ii) Nirmata permits Customer to defend, compromise or settle the claim; and (iii) Nirmata gives Customer all available information, reasonable assistance, and authority to enable Customer to do so. Customer shall reimburse Nirmata for its costs and expenses under this section as they are incurred.

This Agreement commences from the Effective Date and, unless terminated, it shall continue in full force and effect for the License Term of any active Order Forms which reference it ("Term").

In the event that a Party breaches the terms of an Order Form or this Agreement, the other Party may terminate the Order Form or this Agreement on written notice if the breaching Party fails to cure the breach within thirty (30) days after its receipt of written notice detailing the breach from the other Party.

A Party may terminate this Agreement upon written notice (i) upon the institution by or against the other Party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party's making an assignment for the benefit of creditors, or (iii) upon the other party's dissolution or ceasing to do business.

The expiration or termination of an Order Form by a Party shall not affect the ongoing validity of this Agreement or of any other active Order Forms. The termination of this Agreement shall simultaneously terminate any and all active Order Forms. Upon the expiration or termination of this Agreement, (i) the License granted by Nirmata to Customer hereunder shall automatically terminate; (ii) Customer shall discontinue all use of the Nirmata Software; (iii) each Party, as a receiving Party, shall return to or destroy the disclosing Party's Confidential Information within seven (7) days; and (iv) Customer shall pay all License Fees payable under an Order (if applicable) unless otherwise provided in this Agreement.

Sections 1, 7, 8, 9, 10, 11, 12, 14, and Sections 15 through 18 will survive any expiration or termination of this Agreement.

All notices required or permitted under this Agreement will be in writing and delivered in person, by overnight delivery service, or by registered or certified mail, postage prepaid with return receipt requested, and, in each instance, will be deemed given upon receipt. All communications will be sent to the addresses set forth in the applicable Order Form or to such other address as may be specified by either party in accordance with this Section.

Customer may not assign, delegate or transfer this Agreement, in whole or in part, without the prior written consent of Nirmata; provided that Customer may assign this Agreement in whole or in part to an Affiliate or successor in connection with a corporate reorganization, merger, acquisition, or sale of all or substantially all of the Party's assets. Any attempt to assign this Agreement other than as permitted herein will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties' permitted successors and assigns.

Except as otherwise expressly set forth in this Agreement, the rights and remedies of either party as set forth in this Agreement are not exclusive and are in addition to any other rights and remedies now or hereafter provided by law or at equity.

The waiver by either Party of a breach of or a default under this Agreement will not be effective unless in writing. The failure by either Party to enforce any provisions of this Agreement will not constitute a waiver of any other right hereunder or of any subsequent enforcement of that or any other provisions. If a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.

Nirmata will not be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, acts of God or governmental action.

This Agreement along with any additional terms incorporated herein by reference, including the Order Forms and the Exhibits hereto, constitute the complete and exclusive understanding and agreement between the Parties and supersedes any and all prior or contemporaneous agreements, communications and understandings, written or oral, relating to their subject matter. Any modification or amendment of any provision of this Agreement will be effective only if set forth in writing and signed by a duly authorized representative of each Party.