Cavirin Systems Inc. End User License Agreement NOTICE TO USER: PLEASE READ THIS AGREEMENT CAREFULLY. BY DOWNLOADING OR USING THE CAVIRIN SOFTWARE (THE "SOFTWARE") YOU AGREE TO AND ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD OR USE THE SOFTWARE. This End User License Agreement (this “Agreement”) is a contract between Cavirin Systems, Inc., a Delaware corporation (“Cavirin”) and the user of Cavirin’s software (“Licensee”). 1. Software Covered by this Agreement. As used in this Agreement, the term "Software" means Cavirin’s software, and any corrections, modifications, enhancements, updates and upgrades thereto that may be provided to Licensee from time to time. 2. Documentation. As used in this Agreement, the term “Documentation” means any documentation that Cavirin may provide to Licensee, whether in electronic form or in printed form, relating to the Software and its use or operation, and any modifications, additions or updates thereto. 3. Delivery. Promptly after Licensee enters into an agreement to purchase a license to use the Software (the “Purchase Agreement”), either with Cavirin or an authorized Cavirin reseller, Cavirin will furnish Licensee with a license key that will enable Licensee to download the Software and Documentation. 4. Grant of Software License. Subject to the terms and conditions of this Agreement, Cavirin grants to Licensee a non-exclusive right and license to install and use the Software. Licensee may use the Software to manage or monitor only up to the number of IP addresses specified in the Purchase Agreement (“Endpoints”). If Licensee wishes to use the Software for a greater number of Endpoints, Licensee must contact Cavirin or an authorized Cavirin reseller and purchase a license to use the Software for such greater number of Endpoints, for an additional fee. 5. Documentation License. Subject to the terms and conditions of this Agreement, Cavirin grants to Licensee a non-exclusive right and license to internally use the Documentation, and to print a reasonable number of copies of the Documentation for distribution to Licensee’s personnel who use the Software. 6. Term of License. Licensee’s license rights shall become effective when Licensee enters into the Purchase Agreement with Cavirin or an authorized Cavirin reseller. Subject to the terms and conditions of this Agreement, the duration of Licensee’s license rights shall be as set forth in the Purchase Agreement. 7. Ownership. Licensee acknowledges that Cavirin owns the copyright and all other intellectual property rights relating to the Software and Documentation, and that no title to the Software or Documentation, or the intellectual property rights therein, is transferred to Licensee. Cavirin reserves all rights relating to the Software and Documentation except for the license rights specifically granted to Licensee pursuant to this Agreement. Licensee agrees not to alter or remove Cavirin’s copyright notices, or any other notices of proprietary rights, which appear on or in the Software or Documentation. 8. General Restrictions. Licensee may access and use the Software only through its user console, in the manner contemplated by the Documentation, and Licensee agrees not to attempt to directly access any of the underlying code. Licensee agrees not to decompile, disassemble, reverse engineer or otherwise attempt to reconstruct or discover the source code of any of the Software that is provided in object code form, except to the extent Licensee is specifically entitled to do so by applicable law. Licensee agrees not to attempt to modify or create derivative works based upon the Software. Licensee shall not be entitled to distribute the Software, or lease, lend, or otherwise give access to the Software to any third party. 9. Copying; Transfers; Sublicensing. Licensee may copy the Software only as necessary in order to exercise Licensee’s license rights granted in Section 4 of this Agreement. Licensee may not transfer or assign any of the Software, or Licensee’s license rights granted by this Agreement, to any third party, without the prior written consent of Cavirin, which consent Cavirin may grant or withhold in its sole discretion. Licensee may not sublicense to any third party any of the rights granted to Licensee pursuant to this Agreement. 10. License Fee. In consideration for the grant of the license rights in this Agreement, Licensee agrees to pay the nonrefundable fee or fees specified in the Purchase Agreement (the “License Fee”), at the time or times specified in the Purchase Agreement. 11. Support and Maintenance. Cavirin will provide Licensee with the support and maintenance services described in this Section 11 if, but only if, the Purchase Agreement provides that Cavirin will provide such support and maintenance services to Licensee. If Licensee has purchased its license to use the Software from a Cavirin reseller (rather than directly from Cavirin), then the Purchase Agreement entered into between Licensee and such reseller may provide that such reseller, rather than Cavirin, will provide support and maintenance services, on terms set forth in such Purchase Agreement. In addition, if Licensee’s license is a perpetual license, Licensee will be entitled to support and maintenance services only if Licensee has purchased and paid for such services. Notwithstanding any other provisions of the Purchase Agreement, Cavirin may discontinue providing support and maintenance services to Licensee as of the end of any yearly support and maintenance period. (a) Support Services. A “Problem” with the Software is any malfunction or defect in the Software that causes the Software not to operate or perform in accordance with the Documentation, when properly installed and used in accordance with Cavirin’s Documentation and specifications. Licensee may report Problems to Cavirin by telephone during Cavirin’s normal business hours (currently Monday through Friday, 9:00am to 5:00pm, PST, excluding Cavirin holidays), or by email to support@cavirin.com or such other email address as Cavirin may designate. Promptly after receipt of a Problem report, Cavirin will determine the severity of the Problem based upon the criteria in the table below. Cavirin will use reasonable efforts to acknowledge receipt of Problem reports within the response time set forth in the table below and, if Cavirin confirms that the Problem is with the Software, Cavirin will accept the Problem report and use reasonable efforts to provide Licensee with a resolution or workaround within the resolution time set forth in the table below corresponding to the severity level of the Problem. Licensee agrees to provide Cavirin with reasonable access to Licensee’s networks and environment in order to facilitate Cavirin’s support efforts. If Cavirin provides Licensee with a reasonable workaround for a Problem, Cavirin may elect to provide a permanent resolution in its next maintenance release of the Software. Severity Level Description Response Time Resolution Time High A major function of the Software is not working properly which prevents use of the Software and causes Two (2) business hours after receipt of the Problem Seven (7) business days after acceptance of the Problem critical and immediate impact on Licensee’s business operations. report. report. Medium A function of the Software is not working properly which interferes with the proper use of the Software and causes moderate impact on Licensee’s business operations. One (1) business day after receipt of the Problem report. Fifteen (15) business days after acceptance of the Problem report. Low A minor function of the Software is not working properly which causes negligible or low impact on Licensee’s business operations. Two (2) business days after receipt of the Problem report. The next release of the Software. (b) Superseded Versions. Notwithstanding the above provisions, Cavirin reserves the right to decline to provide Problem resolution services with regard to versions of the Software that were superseded by updates or new versions. (c) Maintenance. Cavirin will make available to Licensee, without charge, any new or revised versions of the Software that Cavirin makes generally available to its customers from time to time, to correct errors or effect minor enhancements or improvements. If Cavirin releases a new version of the Software that contains significant new features or functionality, however, Cavirin may require payment of an additional license fee for a license to such new version. 12. Confidentiality. Licensee acknowledges that the Software and the Documentation constitute confidential information of Cavirin. Licensee agrees to hold such Software and Documentation in confidence and not to distribute, disclose, or allow anyone to have access to such Software or Documentation other than Licensee’s employees who need to have such access in connection with Licensee’s authorized use of the Software and Documentation and who have agreed in writing to maintain the confidentiality of the Software and Documentation. 13. Remedies. Licensee acknowledges that the unauthorized disclosure or use of the Software or Documentation would result in substantial and irreparable harm to Cavirin and that monetary damages would be difficult to determine and would constitute an inadequate remedy for Cavirin. Therefore, Licensee agrees that if Licensee breaches this Agreement, Cavirin will be entitled to equitable relief such as an injunction or specific performance, in addition to any other remedies that may be available to Cavirin. 14. Warranty. Cavirin warrants to Licensee that the Software, when used in accordance with the Documentation, will perform the functions described in the Documentation, for a period of thirty (30) calendar days after Licensee’s initial download of the Software. If Licensee notifies Cavirin of the failure of the Software to meet the above warranty within such warranty period, and provides information sufficient to enable Cavirin to verify such failure, Cavirin will correct or modify the Software so that it conforms to the warranty, free of charge. If Cavirin is unable to do so within a reasonable period of time, Licensee may terminate Licensee’s license to use the Software and Documentation upon notice to Cavirin, and Cavirin will refund any License Fees paid by Licensee pursuant to this Agreement. The remedies provided for in this paragraph constitute Licensee’s sole rights, and Cavirin’s sole responsibilities, in connection with any breach of this warranty. Notwithstanding the above, if Licensee has been granted a free trial license to use the Software, the above warranty shall not apply during such trial period. 15. Disclaimer of Other Warranties. EXCEPT FOR THE EXPRESS WARRANTY PROVIDED FOR IN SECTION 14 ABOVE, THE SOFTWARE AND DOCUMENTATION IS PROVIDED TO LICENSEE "AS IS," AND CAVIRIN DISCLAIMS ANY AND ALL OTHER WARRANTIES RELATING THERETO, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NON- INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CAVIRIN DOES NOT GIVE ANY WARRANTY THAT THE OPERATION OF THE SOFTWARE WILL BE ERROR-FREE OR WITHOUT INTERRUPTION. 16. Limitation of Liability. THE AGGREGATE LIABILITY OF CAVIRIN FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THE SOFTWARE OR DOCUMENTATION, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, WILL NOT EXCEED THE TOTAL LICENSE FEES PAID BY LICENSEE FOR THE SOFTWARE LICENSE DURING THE TWELVE-MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. 17. Consequential Damages. IN NO EVENT SHALL CAVIRIN BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF THE SOFTWARE OR DOCUMENTATION, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE AND LOSS OF PROFIT, EVEN IF CAVIRIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 18. Applicability of Limitations and Exclusions. LICENSEE ACKNOWLEDGES THAT THE DISCLAIMERS, LIMITATIONS AND EXCLUSIONS IN SECTIONS 15 THROUGH 17 ABOVE FORM AN IMPORTANT PART OF THIS AGREEMENT, AND THAT CAVIRIN WOULD NOT OFFER A LICENSE TO THE SOFTWARE ON THE TERMS OF THIS AGREEMENT, IF SUCH LIMITATIONS AND EXCLUSIONS WERE NOT INCLUDED IN THIS AGREEMENT. ACCORDINGLY, SUCH LIMITATIONS AND EXCLUSIONS SHALL APPLY EVEN IF ANY REMEDY IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. 19. Termination. Notwithstanding the other provisions of this Agreement, Cavirin will have the right to terminate all of Licensee’s license rights in this Agreement, upon notice to Licensee, if Licensee breaches this Agreement, or fails to pay a License Fee within fifteen (15) days after the date such payment is due, pursuant to the terms of the Purchase Agreement. Upon termination of Licensee’s license rights, Licensee agrees to immediately stop using the Software or any portions thereof, and to return all copies of the Software and Documentation to Cavirin, or destroy all such copies, at the option of Cavirin. Licensee will not be entitled to a refund of any License Fees Licensee has paid for the license rights in this Agreement if such license rights are terminated by reason of Licensee’s breach of this Agreement and, to the extent not yet paid by Licensee, Licensee shall remain responsible for paying the entire perpetual license fee if the license was perpetual, or the entire fee for Licensee’s initial license term if the license was for a specified term. The provisions of Section 7, 12, 13, and 15 through 22 of this Agreement shall survive any termination of this Agreement. 20. Export. Licensee agrees that Licensee will not export or re-export the Software outside of the jurisdiction in which Licensee obtained it from Cavirin, without the appropriate United States or foreign government licenses. 21. U.S. Government Restricted Rights. If the Software license is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then the Software is provided with Restricted Rights and the Government’s rights in the Software and Documentation will be only as set forth in this Agreement. 22. General Provisions. 22.1 Independent Contractors. The parties to this Agreement are independent contractors and no agency, partnership, joint venture, or other relationship shall be created or implied by this Agreement. 22.2 Assignment. The rights and obligations of the parties under this Agreement shall inure to the benefit of, and shall be binding upon, their successors and permitted assigns. Cavirin may assign this Agreement to any person that acquires all or substantially all of Cavirin’s assets related to this Agreement, whether such acquisition is effected by a sale of assets, merger, consolidation, or other similar transaction. Licensee may not assign this Agreement, whether voluntarily or by operation of law, without the prior written consent of Cavirin, which consent Cavirin may grant or withhold in its discretion. 22.3 Amendment and Waiver. This Agreement may not be amended except by a written instrument signed by both parties. No waiver of a breach or default shall be effective unless evidenced by a writing signed by the party entitled to the benefit of the provision breached. No waiver of a breach or default shall be deemed a waiver of any subsequent breach or default. 22.4 Entire Agreement. As between Cavirin and Licensee, this Agreement, together with any Purchase Agreement entered into between such parties, constitutes the entire under- standing, agreement, and contract of the parties with respect to its subject matter and supersedes all prior agreements or understandings, written or oral, between the parties with respect thereto. Neither party shall be liable or bound to the other in any manner by any warranty, representation, or covenant contained in any such prior agreement, understanding, or contract except as specifically set forth in this Agreement. 22.5 Severability. If the application of any provision of this Agreement shall be held to be invalid or unenforceable by any court of competent jurisdiction, then (i) the parties agree to substitute for such provision, a provision that is valid and enforceable and which as nearly as possible accomplishes the intention of the parties as expressed in this Agreement, and (ii) the validity and enforceability of other provisions of this Agreement shall not in any way be affected or impaired thereby. 22.6 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the internal laws of the State of California, without applying its choice of law provisions. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any suit or proceeding arising out of or relating to this Agreement may be brought only in a court located in Santa Clara County, California and the parties irrevocably submit to the exclusive personal and subject matter jurisdiction and venue of such courts. The prevailing party in any suit or proceeding arising out of or relating to this Agreement shall be awarded its costs and reasonable attorney fees.