ELDER SWAMP CLUB SOFTWARE LICENSE AGREEMENT

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE SOFTWARE OFFERED BY ELDER SWAMP CLUB, INC. ("SWAMP CLUB" OR "COMPANY"). BY EITHER PLACING AN ORDER ON THE COMPANY’S WEBSITE, OR MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH COMPANY WHICH REFERENCE THESE TERMS (EACH, AN "ORDER"), OR BY DOWNLOADING, ACCESSING OR USING THE LICENSED SOFTWARE IN ANY MANNER, YOU ("YOU" OR "CUSTOMER") AGREE TO BE BOUND BY THESE TERMS (THE "AGREEMENT") TO THE EXCLUSION OF ALL OTHER TERMS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT; IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION OR ENTITY, REFERENCES TO "CUSTOMER" AND "YOU" IN THIS AGREEMENT, REFER TO THAT ORGANIZATION OR ENTITY. IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT DOWNLOAD, USE OR ACCESS THE SOFTWARE IN ANY MANNER. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.

1. DEFINITIONS.

"Confidential Information" means any and all non-public, confidential and proprietary information, furnished by one party to this Agreement (the "Disclosing Party") or any of its Representatives to the other party to this Agreement (the "Receiving Party") or any of its Representatives, whether orally, in writing, or in other tangible form. Without limiting the generality of the foregoing, Confidential Information may include, without limitation, that which relates to patents, patent applications, trade secrets, research, product plans, products, developments, know-how, ideas, inventions, processes, design details, drawings, sketches, models, engineering, software (including source and object code), algorithms, business plans, sales and marketing plans, and financial information. Any Confidential Information disclosed in a written or other tangible form shall be clearly marked as "confidential," "proprietary," or words of similar import. Any Confidential Information disclosed orally shall, to the extent practicable, be identified as confidential at the time of disclosure. Notwithstanding the foregoing, Confidential Information shall expressly include the terms of this Agreement, the Licensed Software, the Documentation and all know-how, techniques, ideas, principles and concepts which underlie any element of the Licensed Software or the Documentation and which may be apparent by use, testing or examination.

"Derivative Work" means a work of authorship or other development that is based on, derived from or extends, replaces, emulates, substitutes for, or exposes to third parties the functionalities of the Licensed Software or the Documentation, such as a revision, enhancement, modification, improvement, translation, abridgement, compression, extension or expansion or any other form in which such work may be recast, applied, transformed or adopted, and includes, without limitation, any "derivative work" as defined in the United States Copyright Act, 17 U.S.C. Section 101.

"Documentation" means the product documentation made available to Customer at the following URL: https://swamp-club.com/manual.

"Effective Date" means the earlier of the date Customer first makes use of the Licensed Software or the date listed under Effective Date in the corresponding Order.

"Product Description" means the applicable description made available on the Company website or in an Order describing the applicable Licensed Software, the corresponding Fees, and the use limitations applicable thereto, including but not limited to the period of use, the applicable unit of measure, and associated limitations. The Product Description is made available at the following URL: https://swamp-club.com/pricing.

"Extension" means any models, drivers, vaults, reports and similar materials made available by Company at the following URL: https://swamp-club.com/extensions. Extension expressly excludes the Licensed Software.

"Licensed Software" means Company's proprietary software product(s) indicated in the applicable Product Description as Licensed Software, and any updates, upgrades and error corrections made available by Company with respect to the Licensed Software.

"Maintenance and Support” or “M&S" means the maintenance and support services provided by Company for the Licensed Software as specified in the applicable Product Description.

"Representatives" means as to any person, such person's affiliates and its or their directors, officers, employees, agents, and advisors (including, without limitation, financial advisors, counsel and accountants) bound by a written agreement or other legal obligation to maintain the confidentiality of the Confidential Information disclosed to them as required by the terms of Section 11.

"Telemetry Data" means data generated by the Licensed Software or Extensions and Customer's use thereof, including but not limited to automation event logs, workflow execution records, agent activity data, command usage statistics, performance metrics, system diagnostics, and error reports, collected by the Licensed Software during operation.

2. LICENSE GRANT.

2.1 License to Licensed Software. Subject to the terms and conditions of this Agreement, including but not limited to Company’s receipt of all applicable fees, Company hereby grants to Customer, and Customer hereby accepts from Company, a limited, non-exclusive, non-transferable, non-assignable and non-sublicensable, term-limited license to use the Licensed Software solely according to the Product Description, and in a manner consistent with the Documentation, and limitations set forth in this Agreement.

2.2 Restrictions on Licenses. Customer agrees that, except as otherwise expressly provided by this Agreement, it shall not: (a) exceed the scope of the licenses granted in Section 2.1; (b) make copies of the Licensed Software or Documentation except as reasonably necessary for backup purposes; (c) sublicense, assign, delegate, rent, lease, sell, time-share or otherwise transfer the benefits of, use under, or rights to, the license granted in Section 2.1, and any attempt to make any such sublicense, assignment, delegation or other transfer by Customer shall be void and of no effect; (d) reverse engineer, decompile, disassemble or otherwise attempt to learn the source code, structure or algorithms underlying the Licensed Software, except to the extent required to be permitted under applicable law; (e) modify, translate or create Derivative Works of the Licensed Software without the prior written consent of Company; (f) remove any copyright, trademark, patent or other proprietary notice that appears on the Licensed Software, Documentation or copies thereof; or (g) combine or distribute any of the Licensed Software with any software that is licensed under terms that seek to require that any of the Licensed Software (or any associated intellectual property rights) be provided in source code form (e.g., as "open source"), licensed to others to allow the creation or distribution of Derivative Works, or distributed without charge.

3. OPEN SOURCE SOFTWARE. Customer acknowledges and agrees that (a) Company makes certain software available under applicable open source terms (“Swamp OSS”), and such software is not licensed under or subject to this Agreement, and is not Licensed Software; (b) Swamp OSS is subject to the applicable open source terms presented in connection with the same; and (c) Customer shall comply with such open source terms. Swamp OSS is available at the following URL: https://git.swamp-club.com/swamp-club.

4. OWNERSHIP. The Licensed Software and Documentation are licensed and not sold to Customer. Company and its licensors own and retain all right, title and interest in the Licensed Software and Documentation, and all changes, improvements, enhancements, and Derivative Works thereof. Customer may from time-to-time provide suggestions, comments, and other feedback to Company with respect to the Licensed Software or Documentation ("Feedback"). Customer shall, and hereby does, grant to Company a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit Feedback for any purpose.

5. NO FEE OR TRIAL USE. To the extent Customer’s access or use of the Licensed Software is on a no-fee or trial basis, as specified in the corresponding Product Description (such use the “No Fee Usage”), the terms and conditions of this Agreement shall apply with the following exceptions and modifications: (a) the indemnification, warranties, and maintenance and support shall not apply and Customer will not benefit from or request the same; (b) Customer’s access and use of the Licensed Software shall be on an as-is basis without any warranties, expressed or implied; (c) Company may terminate No Fee Usage at any time without notice to Customer and thereby terminate the applicable license and Customer’s access to and use of the Licensed Software, or discontinue the availability of No Fee Usage at any time without notice.

6. PAYMENTS.

6.1 Fees. Customer shall pay to Company the applicable fees set forth in the applicable Product Description, and the other fees described in this Section 6 (collectively, the "Fees"). Customer acknowledges that Customer shall have no right to return the Licensed Software and that all Fees shall be non-refundable.

6.2 Payment Terms. All amounts payable to Company under this Agreement shall be paid in United States dollars and shall be due and payable as specified in the Product Description. Notwithstanding any other rights of Company, in the event of late payment by Customer (other than a payment that is not made when due as a result of a bona fide dispute between the parties), Company shall be entitled to interest on the amount owing at a rate of 1% per month or the highest rate allowed by applicable law, whichever is less, compounded on a daily basis from the due date of payment until the date of actual payment.

6.3 Taxes. Any and all payments made by Customer in accordance with this Agreement are exclusive of any taxes that might be assessed against Customer by any jurisdiction. Customer shall pay or reimburse Company for all value-added, sales, use, property and similar taxes; all customs duties, import fees, stamp duties, license fees and similar charges; and all other mandatory payments to government agencies of whatever kind, except taxes imposed on the net or gross income of Company. All amounts payable to Company under this Agreement shall be without set-off and without deduction of any taxes, levies, imposts, charges, withholdings and/or duties of any nature which may be levied or imposed, including without limitation, value added tax, customs duty and withholding tax.

7. EXTENSIONS, DATA, AGENTS, AND THIRD PARTY SERVICES.

7.1 Extensions. Company may make Extensions available at the following URL: https://swamp-club.com/extensions . Access to and use of Extensions is subject to the terms and conditions presented by the Extension, and not the terms and conditions of this Agreement.

7.2 Telemetry Data. In connection with Customer's use of the Licensed Software and Extensions, Company may collect Telemetry Data from the Licensed Software or Extensions. Customer hereby acknowledges and consents to the collection and use of Telemetry Data for the following purposes: (a) to operate, maintain, and improve the Licensed Software, Extensions, and Company's products and services; (b) to diagnose, monitor, and troubleshoot technical issues and performance; (c) to ensure the security and integrity of the Licensed Software and Extensions; and (d) in aggregate, de-identified form for product analytics and improvements. Customer acknowledges that Telemetry Data collection is a necessary and integral component of the Licensed Software and Extensions. Customer agrees not to disable, circumvent, or interfere with the Telemetry Data collection mechanisms incorporated into the Licensed Software or Extensions.

7.3 Agent Operations. The Licensed Software is designed to enable Customer to build, configure, and execute automated workflows and AI agent operations ("Agent Operations"). Customer acknowledges and agrees that: (a) Company provides the Licensed Software as a platform for Customer to configure, direct, and execute Agent Operations, but Company does not control, supervise, or direct the substantive actions or decisions made by AI agents or automated workflows operated by Customer; (b) Customer is solely responsible for all Agent Operations, including the actions, decisions, outputs, and consequences of any AI agents, automated workflows, or other automated processes that Customer configures or initiates through or in connection with the Licensed Software or Extensions; and (c) Company shall have no liability whatsoever for any claims, damages, losses, liabilities, costs, or expenses arising out of or related to any Agent Operations or any acts or omissions of agents, automated systems, or workflows operated by Customer through or in connection with the Licensed Software, including without limitation any errors, failures, or unintended actions of such agents or workflows. Customer shall defend, indemnify, and hold Company harmless from any claims arising from Customer's Agent Operations.

7.4 Third-Party Services. The Licensed Software and Extensions may interact with or enable integration with third-party software, services, applications, platforms, or data sources that are not owned, operated, or controlled by Company (each a "Third-Party Service"). Customer acknowledges and agrees that: (a) Company makes no representations or warranties with respect to any Third-Party Services, including its availability, accuracy, security, or fitness for any purpose; (b) Company shall have no liability whatsoever for any acts, omissions, errors, failures, interruptions, unavailability, or content of any Third-Party Service; and (c) Customer's use of any Third-Party Service in connection with the Licensed Software is governed solely by the terms and conditions of the applicable third party, and Customer is solely responsible for compliance therewith.

8. TERM AND TERMINATION.

8.1 Term. The term of this Agreement shall commence on the date Customer first downloads, accesses or runs the Licensed Software (the “Effective Date”) and remain in effect during the period specified in the applicable Product Description with respect to each Order (the "Term"), unless this Agreement is terminated earlier in accordance with Section 8. Each Order will renew automatically at the end of the period specified in the applicable Product Description, and the corresponding Fees shall be due, unless either party provides to the other advance written notice with respect to non-renewal at least ninety (90) days prior to the end of the then-current period.

8.2 Termination. This Agreement and the licenses granted hereunder may be terminated: (a) by either party if the other has materially breached this Agreement, within thirty (30) calendar days after written notice of such breach to the other party if the breach is remediable or immediately upon notice if the breach is not remediable; or (b) by Company upon written notice to Customer if Customer (i) has made or attempted to make any assignment for the benefit of its creditors or any compositions with creditors, (ii) has any action or proceedings under any bankruptcy or insolvency laws taken by or against it which have not been dismissed within sixty (60) days, (iii) has effected a compulsory or voluntary liquidation or dissolution, or (iv) has undergone the occurrence of any event analogous to any of the foregoing under the law of any jurisdiction.

8.3 Effect of Termination. Upon any expiration or termination of this Agreement, the license granted in Section 2 shall terminate immediately, and Customer shall (i) immediately cease use of all Licensed Software and Documentation, and (ii) return to Company all copies of the Licensed Software and Documentation and other materials and information provided by Company and any copies thereof made by Customer. Customer shall certify to Company in writing that it has retained no copies of such Licensed Software, Documentation, materials or information. Any termination or expiration shall not relieve Customer of its obligation to pay all Fees accruing prior to termination. If the Agreement is terminated due to Customer's breach, Customer shall pay to Company all Fees set forth in the corresponding Order.

9. WARRANTY.

9.1 Warranty. The Licensed Software, when used by Customer in accordance with the provisions of this Agreement and in compliance with the applicable Documentation, will perform, in all material respects, the functions described in the Documentation during the Term (such period, the "Warranty Period"). No warranty shall apply where the defect or error in the Licensed Software is caused by: (a) any use of the Licensed Software which is not in conformity with the provisions of this Agreement or in substantial compliance with the Documentation; (b) any repair, modification of the Licensed Software not made by Company; or (c) the use of any version of the Licensed Software other than the most current version supported by Company.

9.2 Exclusive Remedies. Customer shall report to Company, pursuant to the notice provision of this Agreement, any breach of the warranties set forth in this Section 9 during the relevant Warranty Period. In the event of a breach of warranty by Company under this Agreement, Customer's sole and exclusive remedy, and Company's entire liability, shall be prompt correction of Errors or, if such correction is not possible, replacement of the Licensed Software in order to minimize any material adverse effect on Customer's business.

9.3 Disclaimer of Warranty. Company does not represent or warrant that the operation of the Licensed Software (or any portion thereof) will be uninterrupted or error free, or that the Licensed Software (or any portion thereof) will operate in combination with other hardware, software, systems, or data not provided by Company hereunder, except as expressly specified in the applicable Documentation. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.1, COMPANY MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE LICENSED SOFTWARE OR SERVICES, OR THEIR CONDITION. COMPANY IS FURNISHING THE WARRANTIES SET FORTH IN SECTION 9.1 IN LIEU OF, AND COMPANY HEREBY EXPRESSLY EXCLUDES, ANY AND ALL OTHER EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES, WHETHER UNDER COMMON LAW, STATUTE OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY AND ALL WARRANTIES AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.

10. LIMITATION OF LIABILITY.

10.1 Exclusion of Consequential Damages. EXCEPT FOR A BREACH OF SECTION 11 (CONFIDENTIALITY) OR SECTION 12 (INDEMNIFICATION) BY EITHER PARTY, CUSTOMER'S BREACH OF SECTION 2 (LICENSE GRANT), OR CLAIMS ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT (COLLECTIVELY, THE “EXCLUDED CLAIMS”), IN NO EVENT SHALL COMPANY OR CUSTOMER BE LIABLE IN AN ACTION UNDER TORT, CONTRACT, WARRANTY OR OTHERWISE FOR ANY: (A) SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE/EXEMPLARY DAMAGES OR LOSSES ARISING FROM OR RELATED TO A BREACH OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION IN THE CASE OF COMPANY, THE OPERATION OR USE OF THE LICENSED SOFTWARE, OR THE SERVICES PERFORMED HEREUNDER, INCLUDING WITHOUT LIMITATION ANY SUCH DAMAGES ARISING FROM AGENT OPERATIONS, THE ACTS OR OMISSIONS OF ANY AI AGENTS OR AUTOMATED WORKFLOWS, OR THE UNAVAILABILITY OR PERFORMANCE OF ANY THIRD-PARTY SOFTWARE; OR (B) DAMAGES OR LOSSES (REGARDLESS OF THEIR NATURE) FOR ANY DELAY OR FAILURE BY A PARTY TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT DUE TO ANY CAUSE BEYOND SUCH PARTY'S REASONABLE CONTROL.

10.2 Maximum Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, OTHER THAN WITH RESPECT TO THE EXCLUDED CLAIMS, IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY UNDER THIS AGREEMENT FOR DAMAGES, LOSSES OR LIABILITY OF ANY KIND EXCEED, EITHER CUMULATIVELY OR IN THE AGGREGATE, THE FEES PAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE CLAIM (THE “CAP”). NOTWITHSTANDING THE FOREGOING, EACH PARTY’S TOTAL AGGREGATE LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER SECTION 12 SHALL NOT EXCEED THE AMOUNT EQUAL TO THREE TIMES (3X) THE CAP.

10.3 Allocation of Risk. The parties acknowledge and agree that the limitations of liability in this Section 10 and in other provisions of this Agreement and the allocation of risk herein are an essential element of the bargain between the parties, without which neither party would have entered into this Agreement. Company's pricing and compensation under this Agreement reflects this allocation of risk and the limitation of liability specified herein. The parties further acknowledge and agree that the limitations of liability in this Section 10 shall apply even when a remedy available under breach of warranty or other similar provisions set forth under this Agreement has failed of its essential purpose.

11. CONFIDENTIALITY. Unless otherwise agreed to in writing by the Disclosing Party, each Receiving Party agrees (a) to keep all Confidential Information in strict confidence and not to disclose or reveal any Confidential Information to any person (other than such Receiving Party's Representatives who (i) are actively and directly involved in providing or receiving products or services under this Agreement, and (ii) have a need to know the Confidential Information), and (b) not to use Confidential Information for any purpose other than in connection with fulfilling obligations or exercising rights under this Agreement. The Receiving Party shall treat all Confidential Information of the Disclosing Party by using the same degree of care, but no less than a reasonable degree of care, as it accords its own Confidential Information. The parties agree to cause their Representatives who receive Confidential Information to observe the requirements applicable to the Receiving Party pursuant to this Agreement with respect to such information, including, but not limited to, the restrictions on use and disclosure of such information contained in this Section 11.

Notwithstanding the above, the obligations of the parties set forth herein shall not apply to any information that: was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Receiving Party or any of its Representatives; was known to the Receiving Party free of any obligation of confidentiality before or after the time it was communicated to the Receiving Party by the Disclosing Party; is independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information; is disclosed with the prior written approval of the Disclosing Party; is or becomes available to the Receiving Party on a non-confidential basis from a person other than the Disclosing Party or any of its Representatives who is not known by the Receiving Party to be otherwise bound by a confidentiality agreement with the Disclosing Party or is under an obligation not to transmit such information; or is disclosed pursuant to an order or requirement of a court, administrative agency or other governmental body; provided, however, that the Receiving Party shall provide prompt written notice of such court order or requirement to the Disclosing Party to enable the Disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure.

Any materials or documents which have been furnished to the Receiving Party from the Disclosing Party shall be promptly returned or destroyed, at the option of the Disclosing Party, by the Receiving Party, within ten (10) days after (a) this Agreement has expired or has been terminated; or (b) a written notice is made by the Disclosing Party requesting such return or destruction. The terms and obligations pertaining to confidentiality in this Agreement shall survive and remain in full force and effect for a period of five (5) years from the termination or expiration of this Agreement, unless the Disclosing Party expressly agrees in writing to release all or part of its Confidential Information from the restrictions imposed by this Agreement before such period has elapsed.

12. INDEMNIFICATION.

12.1 By Company. Company will indemnify, defend and hold harmless Customer and its employees (collectively, the "Indemnified Parties") from and against any and all losses arising from claims by a third party that the Licensed Software when used by Customer as authorized in this Agreement (i) directly infringes a third party copyright or patent; or (ii) misappropriates, or unlawfully uses a third-party's trade secrets (collectively, "Infringement Claims"). Should any Licensed Software become, or in Company's opinion be likely to become, the subject of any Infringement Claim, then Customer will permit Company, at Company's option and expense: to procure for Customer the right to continue using the Licensed Software; to replace or modify the Licensed Software or portion thereof to be non-infringing; or to take any other action reasonably deemed advisable by Company related to such alleged infringement.

12.2 Notice of Claim and Indemnity Procedure. In the event of a claim for which an Indemnified Party will seek indemnity or reimbursement under this Section 12, and as conditions of the indemnity benefits in Section 12, such party shall (a) notify Company in writing as soon as practicable, but in no event later than thirty (30) days after receipt of such claim, together with such further information as is necessary for Company to evaluate such claim; (b) allow Company the right to assume full control of the defense of the claim, including retaining counsel of its own choosing, and the assumption by Company of the defense of a claim with counsel of its choosing; Company will not be liable for the fees and expenses of additional counsel retained by any Indemnified Party; and (c) the Indemnified Party(ies) shall cooperate with Company in the defense of any such claim.

12.3 Exclusions. Notwithstanding any other provision in this Agreement, Company shall have no obligation to indemnify or reimburse any Indemnified Party with respect to any Infringement Claim to the extent arising from (i) use of any Licensed Software in combination with any products or services other than those provided by Company to Customer under this Agreement; (ii) modification of the Licensed Software after delivery by Company to Customer; (iii) use of any version of the Licensed Software other than the most current version made available by Company to Customer hereunder; (iv) the failure of any Indemnified Party to use any updates, corrections or enhancements to the Licensed Software that are made available by Company to Customer hereunder; or (v) detailed, non-discretionary designs or specifications provided to Company by any Indemnified Party that necessarily caused such Infringement Claim. Customer agrees to reimburse Company for any and all damages, losses, costs and expenses incurred as a result of any of the foregoing actions.

12.4 General Limitations. Notwithstanding the foregoing provisions, Company shall have no obligation to indemnify or reimburse for any losses, damages, costs, disbursements, expenses, settlement liability of a claim or other sums paid by any Indemnified Party voluntarily, and without Company's prior written consent, to settle a claim. Subject to the maximum liability set forth in Section 10.2, the provisions of this Section 12 constitute the entire understanding of the parties regarding Company's liability for Infringement Claims (including related claims for breach of warranty if any) and sole obligation to indemnify and reimburse any Indemnified Party.

13. MISCELLANEOUS.

13.1 Use of Name for Marketing Purpose. Customer hereby authorizes Company to identify Customer as a Company customer, and in connection with the foregoing, to use Customer's name, mark and logo on Company's website and in Company's marketing materials.

13.2 Notices. All notices, summons and communications related to this Agreement and sent by either party hereto to the other shall be written in English and given by registered mail, internationally recognized overnight courier, or by electronic mail (with confirmation of receipt), to the party's address as set forth in the corresponding Order, or such other addresses as may have been previously specified in writing by either party to the other.

13.3 Assignment. Customer shall not transfer or assign this Agreement or any of its rights or obligations hereunder, the Licensed Software or any component thereof, or any other materials provided hereunder, to any other person or entity, whether by written agreement, operation of law or otherwise, without the prior written consent of Company. Any purported assignment or transfer by Customer without Company's prior written consent shall be void and of no effect. Company may freely assign this Agreement, or delegate obligations under this Agreement, without the prior written consent of Customer, including in connection with a change in control, merger, acquisition, or sale of all or substantially all of its assets.

13.4 Survival. Sections 1, 2.2, 4, 6, 7, 8.2, 8.3, 9.3, 10, 11, 12, and 13 shall survive the expiration or termination of this Agreement.

13.5 Governing Law. This Agreement and all matters relating to this Agreement shall be construed in accordance with and controlled by the laws of the State of California, without reference to its conflict of law principles. The federal courts of the United States in the Northern District of California and the state courts of the State of California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums, whether on the basis of the doctrine of forum non conveniens or otherwise. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

13.6 No Agency; Independent Contractors. In connection with this Agreement each party is an independent contractor and as such will not have any authority to bind or commit the other. Furthermore, neither this Agreement, nor any terms and conditions contained herein, shall be construed as creating a partnership, joint venture or agency relationship or as granting a franchise.

13.7 Export Control. The Licensed Software, the Documentation and all other technical information delivered hereunder (collectively, "Technical Data") include technology and software and are subject to the export control laws and regulations of the United States ("U.S."). Customer agrees not to export, re-export or otherwise release any Licensed Software outside of the U.S. and to abide by such laws and regulations as to which Company may notify Customer from time to time. Customer further acknowledges and agrees that the Technical Data may also be subject to the export laws and regulations of the country in which the products are received, and that Customer will abide by such laws and regulations.

13.8 Compliance with Laws. Customer shall comply with all applicable laws and regulations in its use of any Licensed Software and Documentation, including without limitation the unlawful gathering or collecting, or assisting in the gathering or collecting of information in violation of any privacy laws or regulations. Customer shall, at its own expense, defend, indemnify and hold harmless Company from and against any and all claims, losses, liabilities, damages, judgments, government or federal sanctions, costs and expenses (including attorneys' fees) incurred by Company arising from any claim or assertion by any third party of violation of privacy laws or regulations by Customer or any of its agents, officers, directors or employees.

13.9 Force Majeure. Neither party shall be liable for failure to perform any of its obligations under this Agreement (except payment obligations) during any period in which such party cannot perform due to fire, earthquake, flood, any other natural disaster, epidemic, accident, explosion, casualty, strike, lockout, labor controversy, war, embargo, riot, civil disturbance, act of public enemy, act of nature, the intervention of any government authority, any failure or delay of any transportation, power, or for any other similar cause beyond either party's control. In the case of failure to perform, the failing party shall promptly notify the other party in writing of the reason for and the likely duration of the failure.

13.10 Severability and Waiver. To the extent that any term, condition or provision of this Agreement is held to be invalid, illegal or otherwise unenforceable under applicable law, then such term, condition or provision shall be deemed amended only to the extent necessary to render such term, condition or provision enforceable under applicable law, preserving to the fullest extent possible the intent and agreements of the parties set forth herein. The failure of a party to prosecute its rights with respect to a default or breach hereunder shall not constitute a waiver of the right to enforce its rights with respect to the same or any other breach.

13.11 Entire Agreement; Amendment. This Agreement and all Orders embody the entire understanding of the parties with respect to the subject matter hereof and shall supersede all previous communications, representations or understandings, either oral or written, between the parties relating to the subject matter hereof. It shall not be modified except by a written agreement signed on behalf of Customer and Company by their respective duly authorized representatives. It is expressly agreed that the terms of this Agreement shall supersede the terms in any purchase order or other ordering document.

13.12 Headings. Captions and headings contained in this Agreement have been included for ease of reference and convenience and shall not be considered in interpreting or construing this Agreement.

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