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END USER LICENSE AGREEMENT

LAST MODIFIED: DECEMBER 12, 2022

This End User License Agreement is entered into as of the effective date (“Effective Date”) stated in the Order Form (“Order Form”) between Anjuna Security, Inc. (“Anjuna”) and the Customer named in such Order Form (“Customer”) for the purpose of granting Customer a limited license to download and use the Licensed Products provided by Anjuna to Customer. Such Order Form and this End User License Agreement are collectively referred to as the “Agreement”.

AGREEMENT

1. DEFINITIONS. As used in this Agreement. “Documentation” means the end user manuals, specifications or other documents made available to Customer at Docs.Anjuna.io. “Intellectual Property Rights” means all copyrights, trade secrets, patents, patent applications, moral rights, contract rights, and other proprietary rights, but specifically excluding any trademarks or service marks. “License Fees” means the fees set forth in the Order Form. “Licensed Products” means the software program(s) listed in the Order Form; and any Updates that Anjuna may provide to Customer pursuant to this Agreement. “Source Code” means the human-readable version of a software program that can be compiled into the binary version of a software program that can be executed by a computer and used by an end user without further compilation. “Updates” means any bug fixes or patches to, and any modified, updated, or enhanced versions of, the Licensed Products.

2. LICENSE GRANT; UPDATES. Subject to the terms and conditions of this Agreement (including Customer’s obligation to pay the License Fees), Anjuna grants to Customer a non-exclusive, non-transferable (except as permitted under Section 10.4 (Assignments)), non-sub-licensable license to download and use the Licensed Products (within the usage limits in the Order Form) solely for Customer’s internal business purposes and solely in accordance with the Documentation, provided that Customer may make up to one (1) copy of the Licensed Products solely for backup or archival purposes. Anjuna will make available to Customer, for no additional charge beyond the License Fees, those Updates that Anjuna generally releases during the Initial Term stated in the Order Form and during any Renewal Term, other than such releases and features for which Anjuna generally charges additional fees.

3. LICENSE RESTRICTIONS. Customer acknowledges that the Licensed Products and their structure, organization, and Source Code constitute valuable trade secrets of Anjuna and its licensors. Accordingly, Customer will not (a) modify, adapt, alter, translate, or create derivative works from the Licensed Products; (b) merge the Licensed Products with other software; (c) sublicense, lease, rent, loan, or otherwise transfer (except in connection with an assignment of Customer’s rights permitted under Section 10.4 (Assignments)) the Licensed Products to any third party, (d) use the Licensed Products in any service bureau or time-sharing arrangement, (e) reverse engineer, decompile, disassemble, or otherwise attempt to derive the Source Code for the Licensed Products; or (f) otherwise use or copy the Licensed Products except as expressly allowed under Section 2 (License Grant). Customer will monitor its use of the Licensed Products to ensure compliance with the Agreement. During the term of this Agreement and for a period of two years following its termination, Customer will maintain complete and accurate records regarding its use of the Licensed Products. Customer agrees that Anjuna (or its independent accountants) may audit Customer’s use of the Licensed Products and pertinent records for purposes of verifying Customer’s compliance with this Agreement. Any audit will take place during Customer’s normal business hours upon at least 30 days’ prior written notice and will not unreasonably affect Customer’s business operations. All information regarding Customer’s business received in any such examination will be held in confidence. If any audit reveals use of the Licensed Products greater than contracted for under this Agreement, Customer will remit additional amounts due within 30 days of receipt of Anjuna's invoice. The expenses of any such audit will be paid by Anjuna, provided that Customer shall pay for the audit if such audit reveals use of the Licensed Products greater than contracted for under this Agreement or in non-compliance with this Agreement. Anjuna may not audit more than once a year.

4. DELIVERY, INSTALLATION, AND ACCEPTANCE. Anjuna will make the Licensed Products available to Customer to download upon execution of this Agreement. Customer will be responsible for installing the Licensed Products on its devices as permitted under this Agreement. The Licensed Products will be deemed irrevocably accepted upon delivery.

5. LICENSE FEES AND PAYMENT. Customer will pay the License Fees to Anjuna in accordance with the invoice cycle in the Order Form. All payments must be made in U.S. dollars. The License Fees exclude all applicable sales, use, and other taxes, and Customer will be responsible for payment of all such taxes (other than taxes based on Anjuna’s income), fees, duties, and charges, and any related penalties and interest, arising from the payment of the License Fees or the delivery or license of the Licensed Products to Customer. Customer will make all payments of the License Fees to Anjuna free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of the License Fees to Anjuna will be Customer’s sole responsibility, and Customer will provide Anjuna with official receipts issued by the appropriate taxing authority, or such other evidence as the Anjuna may reasonably request, to establish that such taxes have been paid. Any portion of the License Fees that is not paid when due will accrue interest at eighteen percent (18%) per annum or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.

 

6. WARRANTIES.

6.1 Performance. For a period of thirty (30) days after the Licensed Products are initially made available to Customer to download (the “Warranty Period”), Anjuna warrants that the Licensed Products, when used as permitted under this Agreement and in accordance with the instructions in the Documentation, will operate substantially as described in the Documentation. Such warranty does not extend to Updates delivered hereunder. Anjuna does not warrant that the Customer’s use of the Licensed Products will be error-free or uninterrupted. Anjuna will, at its own expense and as its sole obligation and Customer’s exclusive remedy for any breach of this warranty, use commercially reasonable efforts to correct any reproducible error in the Licensed Products reported to Anjuna by Customer during the Warranty Period. Any such error correction provided to Customer will not extend the original Warranty Period.

6.2 Viruses. The term “Virus” means any computer code designed to (a) disrupt, disable, harm, or otherwise impede in any manner the proper operation of a computer program or computer system or (b) damage or destroy any data files residing on a computer system without the user’s consent. Anjuna will use commercially reasonable efforts in screening the Licensed Products before making Licensed Products available to Customer, to reduce the possibility of the existence of a Virus. If Anjuna performs such screening, but Customer is able to demonstrate that a Licensed Product supplied by the Anjuna is the source of a Virus introduced into Customer’s computing environment, Anjuna’s sole obligation will be to deliver a new copy or copies of the Licensed Products free of the identified Virus, at no charge to Customer. Customer acknowledges that not all Viruses can be detected by such programs and, therefore, Anjuna does not represent or warrant that such Licensed Products will be free of Viruses.

6.3 DISCLAIMERS. THE EXPRESS WARRANTIES IN THIS SECTION 6 (WARRANTIES) ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE LICENSED PRODUCTS, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, INTERFERENCE WITH CUSTOMER’S QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS SECTION 6, THE LICENSED PRODUCTS ARE PROVIDED “AS IS” WITH ALL FAULTS. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT HAS NOT RELIED ON ANY ORAL OR WRITTEN INFORMATION OR ADVICE, WHETHER GIVEN BY ANJUNA, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES.

7. INFRINGEMENT CLAIMS. Anjuna will defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that the Licensed Products directly infringe any U.S. copyrights or misappropriate any trade secrets recognized as such under the Uniform Trade Secret law, and Anjuna will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on Customer notifying Anjuna promptly in writing of such action, Customer giving Anjuna sole control of the defense thereof and any related settlement negotiations, and Customer cooperating with Anjuna and, at Anjuna’s request and expense, assisting in such defense. If the Licensed Products become, or in Anjuna’s opinion are likely to become, the subject of an infringement claim, Anjuna may, at its option and expense, either (a) procure for Customer the right to continue using the Licensed Products, (b) replace or modify the Licensed Products so that they become non-infringing, or (c) accept return of the Licensed Products and give Customer a refund for the License Fees paid by Customer that correspond to the prepaid but unused balance of the Initial Term or then-current Renewal Term. Notwithstanding the foregoing, Anjuna will have no obligation under this Section or otherwise with respect to any infringement claim based upon (i) any use of the Licensed Products not in accordance with this Agreement or for purposes not intended by Anjuna, (ii) any use of the Licensed Products in combination with other products, equipment, software, or data not supplied by Anjuna, (iii) any use of any release of the Licensed Products other than the most current release made available to Customer, or (iv) any modification of the Licensed Products by any person other than Anjuna. This Section states Anjuna’s entire liability and Customer’s sole and exclusive remedy for infringement claims and actions.

8. LIMITATION OF LIABILITY. IN NO EVENT WILL ANJUNA BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT EVEN IF ANJUNA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANJUNA FURTHER DISCLAIMS THE COST OF COVER, IF CUSTOMER DECIDES TO PURCHASE REPLACEMENT THIRD-PARTY GOODS OR SERVICES IN LIEU OF THOSE OFFERED BY ANJUNA. ANJUNA’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE LICENSED PRODUCTS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF LICENSE FEES PAID TO ANJUNA IN THE MOST RECENT LICENSE TERM. CUSTOMER ACKNOWLEDGES THAT THE LICENSE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT ANJUNA WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.

 

9. TERM AND TERMINATION.

9.1 Term. The term of this Agreement will begin on the Effective Date and will continue until all licenses granted in accordance with this Agreement have expired or have been terminated pursuant to Section 9.2 (Termination). Except as otherwise specified in the Order Form, all Licensed Product licenses will automatically renew for one (1) year periods (each, a “Renewal Term”) unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current license term.

9.2 Termination. Anjuna may terminate this Agreement, effective immediately upon written notice to Customer, if (a) Customer breaches any provision in Section 3 (License Restrictions), (b) Customer fails to pay any portion of the License Fees when due within ten (10) days after receiving written notice from Anjuna that payment is due, or (c) Customer breaches any other provision of this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from Anjuna. Customer may terminate this Agreement if Anjuna breaches any provision of this Agreement and does not cure the breach within thirty (30) days after receiving notice thereof from Customer.

9.3 Effects of Termination. Upon termination or expiration of this Agreement by Anjuna for Customer’s breach, any amounts owed to Anjuna under this Agreement before such termination or expiration will be immediately due and payable, all licensed rights granted in this Agreement will immediately cease to exist, and Customer must promptly discontinue all use of the Licensed Products, erase all copies of the Licensed Products from Customer’s computers, and return to Anjuna or destroy all copies of the Licensed Products and Documentation in Customer’s possession or control and certify in writing to Anjuna that it has fully complied with these requirements. Upon termination or expiration of this Agreement by Customer for Anjuna’s breach, Anjuna shall refund the prorata portion of any prepaid, yet unused amounts as of the date of termination.

9.4 Survival. Sections 1 (Definitions), 3 (License Restrictions), 6 (Warranties), 7 (Infringement Claims), 8 (Limitation of Liability), 9.3 (Effects of Termination), 9.4 (Survival) and 10 (General) will survive expiration or termination of this Agreement for any reason.

 

10. GENERAL.

10.1 Proprietary Rights. The Licensed Products and Documentation, and all worldwide Intellectual Property Rights therein, are the exclusive property of Anjuna. All rights in and to the Licensed Products not expressly granted to Customer in this Agreement are reserved by Anjuna. Customer will not remove, alter, or obscure any proprietary notices (including copyright notices) of Anjuna on the Licensed Products or the Documentation.

10.2 Compliance with Laws. Customer acknowledges that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the Licensed Products. Customer agrees that it will not export or re-export the Licensed Products in any form in violation of the export or import laws of the United States or any foreign jurisdiction. Customer will defend, indemnify, and hold harmless Anjuna from and against any violation of such laws or regulations by Customer or any of its agents, officers, directors, or employees.

10.3 Assignments. Customer may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement (including its licenses with respect to the Licensed Products) to any third party without Anjuna’s prior written consent except pursuant to a transfer of all or substantially all of Customer’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment or transfer in violation of the foregoing will be void.

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

10.5 Notices. All notices, consents, and approvals under this Agreement must be delivered in writing and will be effective upon delivery as follows: (a) if to Customer, when sent via email to the email address specified in the Order Form; and (b) if to Anjuna, when sent via email to support@Anjuna.io. Any such notice, in either case, must specifically reference that it is a notice given under this Agreement. Notices will be deemed to have been received when the party to which the email message is addressed acknowledges receipt. If the sender of a notice in accordance with Section 10.5 receives a machine-generated message that delivery has failed, or if the sender does not receive an acknowledgement in accordance with Section 10.5, that notice will nevertheless be deemed to have been received when originally sent by email if no more than ten (10) business days later the sender delivers a tangible copy of that notice with end-to-end tracking and all fees prepaid.

10.6 Governing Law. This Agreement will be governed by the laws of the State of California without regard to its conflict of laws provision. Any action or proceeding arising from or relating to this Agreement must be brought in a state or federal court located in Santa Clara County, California, and each party irrevocably submits to the jurisdiction and venue of such courts in any such action or proceeding.

10.7 Remedies. Except as provided in Sections 6 (Warranties) and 7 (Infringement Claims), the parties’ rights and remedies under this Agreement are cumulative. Customer acknowledges that the Licensed Products contains valuable trade secrets and proprietary information of Anjuna, that any actual or threatened breach of Section 3 (License Restrictions) will constitute immediate, irreparable harm to Anjuna for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.

10.8 Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

10.9 Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Without limiting the generality of the foregoing, Customer agrees that Section 8 (Limitation of Liability) will remain in effect notwithstanding the unenforceability of any provision in Section 6 (Warranties).

10.10 Confidentiality of Agreement. Neither party will disclose any terms of this Agreement to anyone other than its attorneys, accountants, and other professional advisors except (a) as required by law or (b) pursuant to a mutually agreeable press release or (c) in connection with a contemplated transfer of such party’s business and this Agreement permitted by Section 10.4 (Assignment) (provided that any third party to whom the terms of this Agreement are to be disclosed signs a confidentiality agreement reasonably satisfactory to the other party).

10.11 Construction. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to”.

10.12 Counterparts. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.

10.13 Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement may be amended only by a written document signed by both parties. The terms of any purchase order or similar document submitted by Customer to Anjuna will have no effect.

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