THIS XAGE SECURITY END USER LICENSE AGREEMENT (FOR INTERMEDIARY SALES) (THE “AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOUR COMPANY (“CUSTOMER”) AND XAGE SECURITY, INC., A DELAWARE CORPORATION WITH A PLACE OF BUSINESS AT 445 SHERMAN AVENUE, SUITE 200, PALO ALTO, CA 94306 (“XAGE”).

BY CLICKING “I ACCEPT”, OR PROCEEDING WITH THE USE OF THE XAGE FABRIC YOU ARE REPRESENTING THAT (1) YOU ARE AN AUTHORIZED REPRESENTATIVE OF THE CUSTOMER WITH THE AUTHORITY TO AGREE TO THE TERMS OF THIS AGREEMENT AND ON WHOSE BEHALF YOU ARE AGREEING TO THIS AGREEMENT AND USING THE XAGE FABRIC AND (2) YOU HAVE READ, UNDERSTAND AND ACCEPT THIS AGREEMENT, AND YOU AGREE THAT CUSTOMER IS BOUND BY ITS TERMS.

IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR OTHERWISE USE THE XAGE FABRIC OR CLICK THE “I ACCEPT” BUTTON.

THE EFFECTIVE DATE OF THIS AGREEMENT SHALL BE THE DATE THAT YOU ACCEPT THIS AGREEMENT AS SET FORTH ABOVE.

Customer has received or will be receiving (i) from a Xage authorized reseller (the “Reseller”) the Xage Fabric (as defined below) and/or (ii) either from Xage directly or through the Reseller (who shall pre-install the Xage Fabric thereon) the Hardware (as defined below).  Customer will enter into an agreement or contract with the Reseller, which agreement or contract might include one or more order forms (collectively such agreement/contract and order forms, the “Reseller Contract”).  Xage will not be a party to the Reseller Contract and Xage will not have any obligations or liability to Customer under the Reseller Contract.  However, Customer agrees that Xage is an intended third-party beneficiary of the Reseller Contract with the right to enforce the Reseller Contract.

Customer hereby authorizes the Reseller to provide to Xage a copy of the Reseller Contract (including, without limitation, all order forms or ancillary agreements or documents between the Reseller and Customer).  The Reseller Contract does not waive, modify, or amend any terms or conditions in this Agreement and the Reseller is not authorized to waive, modify, or amend any terms in this Agreement.

1. Definitions.

“Documentation” means any instructions, specifications, documents, or materials that describe the operation and use of the Xage Fabric that Xage makes generally available to end users of the Xage Fabric.

“Environment” means the network, infrastructure, digital system, manufacturing operation, facility or environment operated or managed by Customer into which the Xage Fabric is deployed.

“Hardware” means hardware, equipment, and accessories, including, without limitation, hardware on which either Xage or the Reseller preinstalls the Xage Software.  For purposes of this Agreement the phrase “Xage provided Hardware” and any similar phrase mean Hardware that Xage sells to the Reseller and upon which Xage pre-loaded the Xage Fabric for the Reseller, that the Reseller thereafter sells or otherwise provides to Customer; as to such Hardware, Xage may, at the request of the Reseller, drop ship directly to Customer.

“Identities/Sources” means any application identities, device identities, or user identities purchased by Customer from Reseller under the Reseller Contract for interaction with the Xage Fabric or any data sources that interact with the Xage Fabric.  For clarity, (i) each of the above described identities is only granted on a single identity per application, device, or user basis, with a single identity not to be shared or otherwise exploited in a manner that allows more than one application, device, or user per identity and (ii) for each type of identity (application, device, or user, respectively) the quantities thereof, whether actually used or not, and regardless of whether simultaneously connected or not, that may be instantiated within the Xage Fabric shall not exceed the number specifically purchased by Customer from the Reseller as set forth in the Reseller Contract.

“Intellectual Property Rights” means any and all intellectual property rights in any part of the world, whether registered or unregistered, and all registrations, applications, renewals, extensions and other government issued indicia of ownership thereof, including, but not limited to, rights comprising or relating to: (a) patents, patent disclosures and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with the goodwill associated therewith; (c) copyrights and copyrightable works (including, but not limited to, computer programs), and rights in works of authorship, data and databases; (d) trade secrets, know-how and other confidential information; and (e) all similar or equivalent rights or forms of protection.

“Maintenance and Support” means the technical support and maintenance services for the Xage Software and Hardware purchased by Customer from the Reseller.

“Open-Source Components” means any software component that is subject to any open-source copyright license agreement.

“Subscription” means the subscription license purchased by Customer from the Reseller to access and use of the Xage Fabric.

“Subscription Term” means the term set forth in the Reseller Contract for the Subscription, for both the initial Subscription order and any renewal Subscriptions.

“Updates and Upgrades” means bug fixes, maintenance releases, and/or new versions of the Xage Software, that are generally made available to Xage customers who have purchased a Subscription.

“Usage Parameters” means the maximum number, quantity, and/or type of permitted Identities/Sources, Xage Nodes, Xage Brokers, Xage managers, Xage Enforcement Points (XEPs) and solutions ordered by Customer as set forth in the Reseller Contract, and any other parameters specified in the Documentation or in writing by Xage regarding the scope of use of the Xage Fabric by Customer.

“Xage Fabric” means the Xage Software identified in the Reseller Contract that Customer purchases from the Reseller, which may include, without limitation, Xage Manager, Xage Broker, Xage Node, Xage Enforcement Point (XEP), Client Agents and/or cloud software products offered by Xage.

“Xage Software” means Xage’s proprietary software, whether provided as source or executable code, together with any Updates and Upgrades or bug fixes or other code provided by Xage or by the Reseller to Customer as part of Maintenance and Support.

“Xage Technology” means any and all of the following: (a) Xage Fabric and other Xage Software; (b) any accompanying or related Documentation; (c) other materials including, but not limited to, content made available by Xage; and (d) any and all modifications, improvements, and/or enhancements to any of the items set forth in clause (a) through (c).

2. License Grant.

2.1. License. Subject to the terms and conditions of this Agreement, Xage hereby grants Customer a nonexclusive, nontransferable, non-sublicensable Subscription license during the Subscription Term to (a) use the Xage Fabric for the purpose of providing cyber security in the Customer Environment, subject to the applicable Usage Parameters and in accordance with the Documentation; and (b) reproduce and use a reasonable number of copies of the applicable Documentation in support of the exercise of the licenses granted herein.

2.2. Restrictions. Customer shall not, and shall not permit others to: (a) modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of the Xage Technology; (b) reverse engineer, disassemble, decompile, decode or adapt the Xage Technology, or otherwise attempt to derive or gain access to the Xage Software source code, in whole or in part; (c) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Xage Technology to any third party; (d) exceed the number of Identities/Sources, Xage Nodes, Xage Brokers, Xage Managers, Xage Enforcement Points (XEPs) or other Usage Parameters which Customer has purchased; (e) share any Identities/Sources or exploit the Identities/Sources in a manner that results in usage of any Identity/Source beyond its singular grant, or (f) remove any copyright or other Intellectual Property Rights notices from the Xage Technology or from third party manufactured Hardware. Any violation of any of the foregoing is a material breach of this Agreement.  Except for the express license granted in Section 2.1 (License), no other rights or licenses are granted to Customer, and nothing herein shall be construed as granting, by implication, waiver, estoppel or otherwise to Customer or any third party any rights or licenses under any Intellectual Property Rights or other right, title, or interest in or to any of the Xage Technology.

2.3. Feedback. Customer agrees to notify the Reseller and Xage of any errors or deficiencies in the Xage Technology and Customer may, in Customer’s sole discretion, make suggestions for improvements, enhancements, features, and other information regarding Xage Technology and or any Hardware (collectively, “Feedback”). Customer hereby grants Xage a perpetual, irrevocable, non-exclusive, royalty-free, fully-paid-up, fully-transferable, unrestricted, unlimited, worldwide license (with rights to sublicense through multiple tiers of sublicensees) under all of Customer’s Intellectual Property Rights, for Xage to use and exploit such Feedback in any manner and for any purpose. Customer acknowledges that Xage may or may not incorporate Feedback into Xage Technology at Xage’s sole discretion without restriction and without compensation to Customer.

2.4. Open-Source Components. Any use of Open-Source Components under this Agreement will be governed by, and subject to, the terms and conditions of the applicable open-source license (“Open-Source License”). Xage may identify and describe the Open-Source Components of the Xage Technology on a webpage, in Documentation, README or text files, or by some other reasonable means. Customer may also request Xage to provide a list of the Open-Source Components. Customer agrees to comply with the terms and conditions of the Open-Source Licenses.

3. Hardware and Services.

3.1. Hardware and Documentation Delivery. The Reseller will supply Documentation (if any) to Customer.  The Reseller and Customer will need to agree as to whether Customer or the Reseller will acquire, install, and deploy the Hardware in Reseller’s permitted reseller territory.  Hardware delivery shall be arranged through the Reseller through the Reseller Contract.

3.2. Maintenance and Support.

3.2.1. The Reseller will be responsible for providing Maintenance and Support (if any) to Customer for the Hardware that Customer receives from the Reseller, all as set forth in the Reseller Contract.

3.2.2. Xage will provide Maintenance and Support to Customer for the Xage Fabric and the Xage provided Hardware, all in accordance with Xage’s standard support terms then in effect. Notwithstanding the foregoing, Xage may elect not to provide Maintenance and Support to Customer if Customer is in breach of this Agreement or the Reseller Contract. Customer is solely responsible for taking appropriate measures to back up Customer’s systems and data and all other necessary measures to prevent any file or data loss.  For clarity, Xage will not be obligated to provide the maintenance or support to Customer under this Agreement with respect to Hardware other than the Xage provided Hardware.

3.3. Customer Obligations. Customer is solely responsible for taking appropriate measures to back up Customer’s systems and data and all other necessary measures to prevent any file or data loss, damage, or corruption.

3.4. Professional Services. Professional services, if any, to be provided by Xage to Customer, or otherwise requested by Customer, will be subject to the terms and conditions set forth in Xage’s then-current Professional Services Terms (currently available at https://xage.com/business/xage-security-professional-services-terms).

3.5. Updates and Upgrades. During the term of this Agreement, Xage may provide to Customer Updates and Upgrades that are made generally available by Xage to its customers free of charge.  Notwithstanding the foregoing, Xage may, in its discretion, elect not to provide Updates and Upgrades to Customer if Customer is in breach of this Agreement or the Reseller Contract.  The term “Updates and Upgrades” expressly excludes any additional, new and/or separate products, features, enhancements, functionality, and/or services which Xage may make available on a commercial basis to its resellers or customers as add-on features to the Xage Fabric which are typically subject to separate fees (“Excluded Features”).  Any such Excluded Features made available by Xage to Customer or by Xage to the Reseller and that the Reseller makes available to Customer shall be subject to the Reseller Contract and the Reseller’s then-current fees for such Excluded Features.  Customer may purchase access to such Excluded Features from the Reseller pursuant to the Reseller Contract.  The use of any Excluded Features purchased by Customer shall be governed by the terms of this Agreement, and such Excluded Features shall be deemed included in the definition of “Xage ”

4. Payments to Reseller and Verification.

4.1. Fees Payable to Reseller. Customer will pay the Reseller any subscription fees, service fees and other fees as set forth in the Reseller Contract.

4.2. Verification and Audit. At Xage’s request, Customer will furnish Xage with a certification signed by Customer’s authorized representative verifying that the Xage Fabric is being used by Customer in accordance with this Agreement. Upon at least ten (10) days’ prior written notice to Customer, Xage may audit Customer’s use of the Xage Fabric to ensure that Customer is in compliance with this Agreement and the Reseller Contract. Any such audit will be conducted during regular business hours at Customer’s facilities, will not unreasonably interfere with Customer’s business and will comply with Customer’s reasonable security procedures. Customer will provide Xage with reasonable access to all relevant records and facilities reasonably necessary to conduct the audit. If an audit reveals that Customer has exceeded the scope of Customer’s license grant during the period audited or did not pay the Reseller for all licenses used by Customer, then Xage or the Reseller will invoice Customer, and Customer will promptly pay the Reseller or Xage any underpaid fees based on the Reseller’s price list in effect at the time the audit is completed. If the excess usage exceeds ten percent (10%) of the fees then being paid by Customer for the Xage Fabric, then Customer will also pay Xage’s reasonable costs of conducting the audit. This Section 4.2 (Verification and Audit) will survive expiration or termination of this Agreement for a period of three (3) years.

5. Ownership.

5.1.Xage. Subject solely to the express license granted by Xage under Section 2.1 (License) of this Agreement, as between the parties, Xage reserves and retains all right, title and interest in and to the Xage Technology and Xage’s other Confidential Information, including, without limitation, the sole and exclusive ownership of all Intellectual Property Rights relating thereto.

5.2. Rights in Open-Source Components. Ownership of all Intellectual Property Rights in Open-Source Components remains with the respective owners thereof, subject to Xage’s and Customer’s respective rights and licenses under the applicable Open-Source Licenses.

6. Confidentiality.

6.1. Confidential Information. Customer acknowledges that Xage may disclose or make available to the Customer (including, without limitation, via the Reseller) confidential information and other sensitive or proprietary information and materials such as reference designs, pricing, business affairs, future products/services, customer and prospect lists, know-how, ideas, concepts, designs, drawings, flow charts, diagrams, third-party confidential information and other intellectual property relating to the Xage Technology or subject matter of this Agreement (collectively, “Confidential Information”). Confidential Information also includes, without limitation, Feedback, Xage Technology, and any fees paid by Customer hereunder.

6.2. Use and Disclosure. Customer agrees: (a) not to use Confidential Information other than as strictly necessary to exercise its rights or perform its obligations under this Agreement, including without limitation not to use any of the Confidential Information, in any manner to the detriment of Xage; (b) to maintain Confidential Information in strict confidence and not to disclose any Confidential Information without Xage’s prior written consent, provided, however, that Customer may disclose the Confidential Information to its employee, contractors and agents (“Representatives”) who: (i) have a “need to know” for purposes of any performance, or exercise of any rights with respect to such Confidential Information, under this Agreement; (ii) have been apprised of this restriction; and (iii) are themselves bound by written nondisclosure agreements or obligations at least as restrictive as those set forth in this Section provided, further, that Customer shall be responsible for ensuring its Representatives’ compliance, and shall be liable for any of its Representatives’ noncompliance; and (c) notify Xage in writing immediately of any unauthorized accessing, possession or use of the Confidential Information of which it may become aware and cooperate fully with Xage in any investigation or litigation relating to or arising from any of such unauthorized acts.  Customer shall use, and ensure that its Representatives use, reasonable care, at least as protective as the efforts it uses with respect to its own confidential information, to safeguard Confidential Information from use or disclosure other than as permitted hereby.

6.3. Exceptions. If Customer becomes legally compelled to disclose any Confidential Information, it shall: (a) provide prompt written notice to Xage so that Xage may seek a protective order or other appropriate remedy; and (b) disclose only the portion of Confidential Information that it is legally required to produce. If a protective order or other remedy is not obtained, Customer shall use reasonable efforts to obtain assurance that confidential treatment will be afforded the Confidential Information.

7. Term and Termination.

7.1. Term. This Agreement commences on the date Customer agreed to the terms of this Agreement and will continue in effect for so long as the Subscription Term has not expired and Customer continues to pay the Reseller the applicable fees for the Xage Fabric, unless terminated earlier pursuant to any express provisions of this Agreement.

7.2. Termination.

7.2.1. Either party may terminate this Agreement by delivering written notice to the other party upon the occurrence of any of the following events: (a) a receiver is appointed for either party or its property; (b) either party makes a general assignment for the benefit of its creditors; (c) either party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, which proceedings are not dismissed within sixty (60) days; or (d) either party is liquidated or dissolved.

7.2.2. Either party may terminate this Agreement effective upon written notice to the other party if the other party breaches this Agreement and such breach: (a) is incapable of cure; or (b) being capable of cure, remains uncured thirty (30) days after the breaching party receives written notice thereof.

7.2.3. This Agreement will continue notwithstanding the terminate or expiration of (i) the Reseller Contract between Customer and the Reseller and/or (ii) the agreement between the Reseller and Xage. If Customer desires to continue using the Xage Fabric after termination or expiration of the Reseller Contract or after the expiration of the Subscription Term, Customer should contact Xage directly. In such event, Customer will either (a) enter into a new contract with a new reseller (which reseller will the “Reseller” for purposes of this Agreement and which contact will be the “Reseller Contract” for purposes of this Agreement or (b) enter into an amendment to this Agreement governing Customer’s continued use of the Xage Fabric beyond the then-current Subscription Term, including, without limitation, the subscription fees payable to Xage.

7.3. Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, for any reason, Customer shall: (a) immediately discontinue all use of and permanently erase or cause to be erased from its computer systems, files and storage media all copies of the Xage Technology and other Confidential Information of Xage obtained, made or authorized to be made by Customer or on Customer’s behalf; and (b) within ten (10) days after such expiration or termination, return or cause to be returned to Xage or, with Xage’s written approval, destroy or cause to be destroyed all copies obtained, made or authorized to be made by Customer or on Customer’s behalf of documents and tangible materials containing, reflecting, incorporating or based on the Xage Technology or any other Confidential Information of Xage, and certify in writing to the Xage that it has complied with the requirements of this Section 7.3.

7.4. Survival. The rights and obligations of the parties set forth in this Section 7.4 (Survival) and Sections 2.2 (Restrictions), 2.3 (Feedback), 4 (Payments to Reseller and Verification), 5 (Ownership), 6 (Confidentiality), 7.3 (Effect of Expiration or Termination), 8.2 (Disclaimer), 9 (Indemnification), 10 (Limitations of Liability) and 13 (Miscellaneous), and any right, obligation or required performance of the parties in this Agreement which by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.

8. Limited Warranty; Disclaimer.

8.1. Limited Warranty. For a period of ninety (90) days following (i) (in the case of Xage provided Hardware ) the earlier of the date that Xage ships the Hardware with pre-installed Xage Software or the date the Xage Software is made available for use by Customer or (ii) (in all other cases) the date Xage Software is made available for use by Customer (“Warranty Period”), Xage warrants that the Xage Software and Xage provided Hardware (if any) will perform substantially in accordance with the Documentation. Customer shall promptly notify the Reseller and Xage of any breach of the foregoing limited warranty during the Warranty Period, in which event Xage shall use commercially reasonable efforts to correct such problem or provide a work-around. If Xage is unable to correct or provide a workaround within ninety days (90) following expiration of the Warranty Period, on Customer request or at Xage’s discretion, Xage will refund Customer the subscription fees paid for the non-conforming Xage Software, in which case Customer’s right to use such Xage Software will terminate.  Any error correction or workaround provided to Customer will not extend the original Warranty Period. This warranty is void if Xage determines a non-conformance was caused by: (i) any alteration or modification to the Xage Software made by Customer or any third-party; (ii) third party applications or software, or hardware manufactured by a third party; or (iii) accident, improper maintenance, negligence, abuse or misuse, or any use of the Xage Fabric inconsistent with this Agreement, the Reseller Contract, and/or applicable Documentation.

Xage makes no representations or warranties to Customer with respect to any Hardware.  As to Reseller-provided Hardware, the Reseller may provide certain warranties to Customer with respect to the Hardware purchased by Customer from the Reseller or the Reseller may pass through to Customer the applicable hardware warranty from the third-party manufacturer of any Hardware provided by the Reseller to Customer.

As to any Xage provided Hardware supplied, Xage will pass through any applicable hardware warranty from the third party manufacturer to Customer, provided that any such passed through warranty will be subject to the Warranty Period set forth above.  If such Xage provided Hardware does not comply with the hardware warranty from the third party manufacturer during the applicable warranty period, Xage may direct the Customer to (i) return the Hardware to Xage for repair, replacement, or a refund, at Xage’s option, or (ii) return the Hardware to the third party manufacturer for repair or replacement.

If Xage determines that a faulty Xage provided Hardware is the source of a non-conformance with the Xage Software, Customer will need to obtain an RMA number and return the Hardware, either to Xage, the Reseller, or directly to the applicable third party manufacturer, at Xage’s direction, and comply with all other applicable return policies and procedures.

THE FOREGOING TERMS IN THIS SECTION 8.1 (LIMITED WARRANTY) STATE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND XAGE’S SOLE AND EXCLUSIVE LIABILITY, FOR XAGE’S BREACH OF ANY WARRANTY IN THIS SECTION.

8.2. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.1, XAGE EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO ANY ASPECT OF THE XAGE FABRIC, OTHER XAGE TECHNOLOGY, AND HARDWARE, ITS/THEIR OPERATION, MAINTENANCE OR SUPPORT OR ANY OTHER SERVICES TO BE PERFORMED BY XAGE HEREUNDER, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DESIGN, CONDITION, CAPACITY, PERFORMANCE, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.  XAGE DOES NOT WARRANT THAT THE XAGE FABRIC, OTHER XAGE TECHNOLOGY, OR HARDWARE WILL OPERATE UNINTERRUPTED OR ERROR-FREE OR THAT ALL ERRORS WILL BE CORRECTED.

9. Indemnification. Customer shall defend, indemnify and hold harmless Xage and its officers, directors, employees, shareholders, customers, agents, successors and assigns from and against any and all loss, damage, settlement, costs or expense (including, without limitation, legal expenses and expenses of other professionals), resulting from, or arising out of any third party claim which alleges that the Customer Environment: (a) has caused or contributed to bodily injury, death or damage to property; (b) violates any applicable laws or rights of privacy; or (c) infringes upon, misappropriates or violates any third party Intellectual Property Right. Xage shall prompt notify Customer in writing of any such claims, give Customer sole control of the defense thereof and any related settlement negotiations, and at Customer’s reasonable request and expense, cooperate and assist in such defense.  Under no circumstances shall Customer enter into any settlement that involves an admission of liability, negligence or other culpability of Xage or requires Xage to contribute to the settlement without Xage’s prior written consent.  Xage may participate and retain its own counsel at its own expense.

10. Limitation of Liability.

10.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL XAGE OR ITS SUPPLIERS BE LIABLE TO CUSTOMER FOR ANY LOSS OF, DAMAGE TO, OR CORRUPTION OF DATA, LOST PROFITS, BUSINESS, CONTRACTS, REVENUE, PRODUCTION, GOODWILL OR ANTICIPATED SAVINGS, OR BUSINESS INTERRUPTION OR OTHER COMMERCIAL, PERSONAL, ECONOMIC OR OTHER DAMAGES, LOSSES OR INJURY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH XAGE FABRIC, HARDWARE, THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSSES, DAMAGES OR INJURIES AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.

10.2. IN NO EVENT WILL XAGE’S OR ITS SUPPLIER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO XAGE FABRIC, HARDWARE, THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, EXCEED THE FEES PAID TO XAGE BY THE RESELLER FOR THE AFFECTED XAGE FABRIC DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY, LESS IN ALL CIRCUMSTANCES AMOUNTS PREVIOUSLY PAID BY XAGE IN SATISFACTION OF LIABILITY UNDER THIS AGREEMENT.

11. Export. Customer acknowledges that the laws and regulations of the United States may restrict the export and re-export of certain commodities and technical data of United States origin, including, without limitation, components of the Xage Fabric or Hardware.  Customer agrees that it will not export or re-export any Xage Fabric or Hardware without the appropriate United States or foreign government licenses.  Without limiting the foregoing, (i) Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not permit access or use of the Xage Fabric or Hardware in violation of any U.S. export embargo, prohibition or restriction.

12. Government End Users. The Xage Fabric is a “commercial computer software” product as that term is described in DFAR 252.227-7014(a)(1).  If Customer is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Xage Fabric, or any related documentation of any kind, including, without limitation, technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 and 12.11 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Xage Fabric was developed fully at private expense. All other use is prohibited.

13. Miscellaneous. (a) The relationship of the parties hereto are independent contractors, and neither party is an employee, agent, partner or joint venturer of the other. (b) This Agreement shall be governed by and construed under the law of the State of California without regard to conflict of laws provisions. The federal and state courts of Santa Clara County, California shall have exclusive jurisdiction and venue to adjudicate any dispute arising out of this Agreement.  Each party hereto expressly consents to the personal jurisdiction of such courts and service of process being effected upon it by registered mail sent to the address set forth at the beginning of this Agreement. (c) This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof and merges all prior and contemporaneous discussion between them.  No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless set forth in writing signed by officers of both parties hereto. (d) Any notice required or permitted by this Agreement will be in writing and will be sent by prepaid, registered or certified mail, return receipt requested, addressed to the other party at the address  (i) shown at the beginning of this Agreement, with respect to notices to Xage, and (ii) to Customer’s address set forth on the Xage portal, or (iii) at such other address for which such party gives notice hereunder.  Such notice will be deemed to have been given when delivered or, if delivery is not accomplished by some fault of the addressee, when tendered. (e) Customer may not transfer or assign its rights or obligations under this Agreement without the prior written consent of Xage.  Subject to the foregoing sentence, this Agreement will be binding upon and inure to the benefit of the parties hereto, their successors and assigns. (f) If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect.  The parties agree to renegotiate in good faith any term held invalid and to be bound by the mutually agreed substitute provision. (g) The failure of either party to enforce at any time any of the provisions of the Agreement, or the failure to require at any time performance by the other party of any of the provisions of this Agreement, will in no way be construed to be a present or future waiver of such provisions, nor in any way affect the validity of either party to enforce each and every such provision thereafter.