Evaluation Version Embedded Security Software License Agreement

NOTICE TO USER: THIS IS A CONTRACT. BY DOWNLOADING, RECEIVING, OR INSTALLING THIS SOFTWARE YOU ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.

CAREFULLY READ THE FOLLOWING EVALUATION VERSION SOFTWARE LICENSE AGREEMENT (THE “EVSLA”). BY CLICKING ON “I AGREE” AT THE BOTTOM OF THIS PAGE, YOU ACCEPT THE TERMS OF THIS EVSLA. IF YOU DO NOT ACCEPT THE TERMS OF THIS EVSLA, CLICK ON “I DISAGREE” BELOW. IMPORTANT: READ THE FOLLOWING CAREFULLY:

This EVSLA is a legal agreement between you (either the individual person or the single entity that you identified in the online registration process) and Mocana Corporation (“MOCANA”) for the MOCANA software that you are requesting to evaluate, which includes computer software and any associated media, and may include online or electronic documentation, and printed materials (“SOFTWARE”). The term “SOFTWARE” also shall include any upgrades, modified versions or updates of the embedded security software provided to you by MOCANA. By downloading, installing, copying, transferring or otherwise using the SOFTWARE, you agree to be bound by the terms of this EVSLA. If you do not agree to the terms of this Agreement, you are not authorized to download, use, copy or transfer the SOFTWARE.

1. Grant of Limited License; Software Use Restrictions.
In consideration for your acceptance of the terms and conditions of this agreement, MOCANA grants to you, for a term of thirty (30) days, a personal, nontransferable, nonexclusive license to use the SOFTWARE subject to the provisions set forth herein. The license is granted only to you and only for use at the site that you specified during the online registration process. The SOFTWARE is not free software. This license allows you to use the embedded security software, for evaluation purposes, without charge for a period of thirty (30) days (the “EVALUATION PERIOD”). If you use this SOFTWARE after the EVALUATION PERIOD, a license fee is required. Unless agreed to in writing by MOCANA, you shall not remove, release, disclose, reveal, copy, extract, modify or duplicate all or any part of the SOFTWARE or accompanying material in any way either for yourself or for others, or suffer or permit such to be done. You shall not reverse compile, reverse engineer, or disassemble any portion of the SOFTWARE or any hardware device provided by MOCANA.

2. Ownership of Software.
The SOFTWARE is licensed, not sold to you. The SOFTWARE is owned by MOCANA and is protected by the copyright laws of the United States and by international treaties. You agree and acknowledge that MOCANA transfers no ownership interest in the SOFTWARE, in the intellectual property in the SOFTWARE or in any SOFTWARE copy, to you under this Agreement or otherwise, and that MOCANA reserves all rights not expressly granted to you hereunder. You may use the SOFTWARE only for your benefit and only for evaluation purposes in the course of your normal business activities and shall not allow it to be used by any other person or company, including, but not limited to, contractors, universities and/or affiliates who do not also hold a license from MOCANA.

3. Transfer Restrictions.
This license is personal to you. You may not transfer the SOFTWARE and/or assign this EVSLA to any third party, without the prior written consent of MOCANA, which may be withheld in the sole discretion of MOCANA. If you attempt to transfer or assign this EVSLA, such transfer or assignment will be void and without effect.

4. Confidentiality.
You agree to treat as strictly confidential the SOFTWARE and all information pertaining to it, including but not limited to mathematical techniques, correlations, concepts, designs, specifications, listings, and documents that you may receive from MOCANA in connection with this EVSLA. You also agree not to disclose any such information to any third party. These obligations will survive expiration or termination of this EVSLA. Upon the conclusion of the EVALUATION PERIOD, if you have not elected to pursue and consummate a commercial license with MOCANA, you must promptly return all copies of the SOFTWARE and all materials provided by MOCANA in your possession, as well as hardware security devices provided by MOCANA; you must provide written confirmation, via email, courier, registered mail or facsimile transmission, that all copies of the SOFTWARE have been deleted and erased from all memory media. This written confirmation must come from an officer of the company, or a representative at the level of Vice President, or Sr. Director. MOCANA reserves the right to audit your compliance with this requirement that the SOFTWARE has been deleted and erased.

5. Disclaimer of Software Warranty; Limitation of Liability.
MOCANA DISCLAIMS ANY AND ALL IMPLIED WARRANTIES RELATING TO THE SOFTWARE OR ANY SOFTWARE PRODUCTS PROVIDED BY MOCANA, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE. IN NO EVENT SHALL MOCANA HAVE ANY LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO THE DELIVERY, USE, EFFICIENCY OR SUITABILITY OF THE SOFTWARE, OR THE APPLICATION OF THE SOFTWARE OR ANY SUCH SOFTWARE’S RESULTS. IN NO EVENT SHALL MOCANA HAVE ANY LIABILITY TO ANYONE, AS A RESULT OF THIS EVSLA, FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS, WHETHER IN CONTRACT, IN TORT, OR OTHERWISE, EVEN IF MOCANA HAS BEEN ADVISED OF THE POSSIBILITY THEREOF IN ADVANCE.

6. Export Restrictions.
The SOFTWARE and documentation are subject to export controls under the United States Export Administration Act, as amended, which Act prohibits exports of certain commodities and technical data, including software, to specified countries. In particular, the SOFTWARE may NOT be used in or exported to Cuba, Iran, Iraq, Libya, North Korea, Sudan, or Syria, and in certain cases, may not be used or exported outside of the US or Canada. You hereby certify that you will comply with all current US Export Control laws. You agree to defend, indemnify and hold MOCANA harmless from any liability for your violation of US Export Control laws.

7. U.S. Government Users.
If the SOFTWARE is acquired by or on behalf of an entity of the government of the United States of America, the following provision applies: U.S. GOVERNMENT RESTRICTED RIGHTS LEGENDS – Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause at DFARS 252.277-7013 or in subparagraphs (c)(1) and (2) of the Commercial Computer Software – Restricted Rights clause at 48 C.F.R 52.227-19, as applicable. The Contractor/Manufacturer is: Mocana Corporation, 350 Sansome Street, Suite 1010, San Francisco, CA 94104, USA.

8. INDEMNIFICATION.
YOU AGREE TO INDEMNIFY, HOLD HARMLESS AND DEFEND MOCANA, AND ITS SUBSIDIARIES, OFFICERS, AGENTS, CO-BRANDERS OR OTHER PARTNERS, AND EMPLOYEES (AND EACH OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS), AT YOUR EXPENSE, FROM AND AGAINST ANY AND ALL LIABILITIES, DAMAGES, SETTLEMENTS, PENALTIES, FINES, COSTS OR EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND OTHER LITIGATION EXPENSES), ARISING OUT OF OR RELATING TO THIRD PARTY CLAIMS, ACTIONS, PROCEEDINGS, AND SUITS INCURRED BY ANY OF THEM ARISING OUT OF OR RELATING TO YOUR (A) VIOLATION OR BREACH OF ANY TERM OF THIS AGREEMENT, OR (B) MISUSE OF THE SOFTWARE.

9. Waiver.
The waiver of, or failure to enforce, any breach or default hereunder shall not constitute the waiver or any other or subsequent breach or default.

“This document will be a binding agreement between MOCANA and you with respect to the subject matter hereof, shall not be superseded or amended except by a written agreement between the parties thereto, and will be governed by the laws of the State of California, USA. By clicking “I Agree”, you represent that you have the authority to enter into this agreement on behalf of the entity identified in the registration process.”