Software Pilot License Agreement
By taking possession of Pilot Materials (as defined herein) you agree to be bound by the terms of this Software Pilot License Agreement (the “Agreement”), effective as of the Effective Date (as defined herein), by and between Pilot User and Taqtile, Inc., a Delaware corporation (the “Provider”).  Pilot User and Provider shall individually be referred to as a “Party” and collectively as the “Parties”.  
WHEREAS, Pilot User wishes to evaluate the Pilot Materials for purposes of considering entering into a Software License Agreement with Provider and you are willing to test and evaluate the Pilot Software in accordance with the terms and conditions of this Agreement; and
WHEREAS, Provider is willing to grant to Pilot User the Pilot License in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.	Definitions.
“Agreement” has the meaning set forth in the preamble.
“Authorized Services” means any and all of the following services performed by any Authorized User for Pilot User solely for or in connection with Pilot User’s use of Third-Party Materials or any Pilot Materials or other Confidential Information of the Provider for the Permitted Use in accordance with this Agreement: the delivery, installation, configuration, integration, storage, deployment, operation, testing, analysis, evaluation, backup, archiving and disaster recovery of, or training of Authorized Users concerning, the Pilot Software.
“Authorized User” means all officers, directors and employees of Pilot User and its affiliates, Divested Business, each of whom is authorized to use the Pilot Software solely for the benefit of Pilot User in accordance with the terms and conditions of this Agreement. Authorized Users also include all third-party individuals, including, but not limited to, all agents, contractors, consultants, advisors, suppliers, customers and any of their respective employees, that Pilot User retains or grants any sublicense to hereunder to provide Authorized Services.
“Controlled Technology” means any software, documentation, technology or other technical data, or any products or services that include or use any of the foregoing, the export, re-export or release of which to certain jurisdictions or countries is prohibited, or requires an export license or other governmental approval, under any Law, including, but not limited to, the US Export Administration Act and its associated regulations.
“Data Law” means all Laws related to the Processing of Usage Data, including Personal Identifying Information, (e.g., the Gramm- Leach-Bliley Act and any state statutes adopted to comply therewith, the FTC regulations promulgated pursuant thereto (including 16 CFR § 313, 16 CFR § 314, 12 CFR § 332 and 12 CFR § 364), any state regulations promulgated under state privacy statutes or in compliance with the Gramm-Leach-Bliley Act, the Health Insurance Portability and Accountability Act of 1996 (including as amended by the American Recovery Reinvestment Act of 2009) and the European Union Data Protection Directive (Directive 95/46/EC).
“Deliverables” means all written material, reports and output that is custom developed by Provider for Pilot User and supplied to Pilot User in connection with the Services.
“Divested Business” means any division, marketing unit or business unit or any part or portion thereof, that Pilot User or Pilot User affiliate sells or otherwise transfers, whether through a sale of assets, stock, merger or other form of transaction and the legal entity resulting therefrom, and any division, marketing unit or business unit sold prior to the effective date of this Agreement by Pilot User or Pilot User affiliate or any predecessor thereof.
 “Documentation” means any and all manuals, instructions or other documents or materials that the Provider provides or makes available to Pilot User in any form or medium and that describe the functionality, components, features or requirements of the Pilot Software, including any aspect of the installation, configuration, integration, testing, operation, use, support or maintenance thereof.
“Effective Date” means Date software is first installed or deployed.
 “Intellectual Property Rights” means each of the following throughout the world: (a) registered and unregistered copyrights and all derivative works thereof; (b) pending and issued patents (including all reissues, reexaminations, divisionals, continuations, and continuations-in-part); (c) mask works and trade secrets as defined by applicable law; (d) trademarks and service marks; and (e) all other intellectual property rights enforceable under the laws of the United States of America (or any of its states) or any other jurisdiction where Pilot Software or Services are delivered to Pilot User, its affiliates or Divested Businesses or provided by Provider. 
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement or rule of law of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
 “Open-Source Components” means any software that is subject to any open-source copyright license agreement, including, but not limited to, any GNU General Public License or GNU Library or Lesser Public License, or other obligation, restriction or license agreement that substantially conforms to the Open Source Definition as prescribed by the Open Source Initiative or otherwise may require disclosure or licensing to any third party of any source code with which such software component is used or compiled.
“Permitted Use” means the testing, demonstration, trial, evaluative and limited production use of the Pilot Software, including, but not limited to, the assessment of the Pilot Software’s compatibility with the Pilot User’s System, by an Authorized User for the benefit of Pilot User solely for the purpose of Pilot User’s utilization of the Pilot Software to determine whether Pilot User will enter into the Software License Agreement.  For clarity, this definition extends to demonstration and instructional use of the Pilot Software functionality, including but not limited to augmented reality, to customers of Pilot User, its affiliates and Divested Businesses.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
“Personal Identifying Information” means any data or information that identifies or could be used to identify a natural person, such as a name, mailing address, phone number, fax number, email address, frequent flier number, Social Security number, credit card or other payment data, date of birth, driver’s license number, account number or user ID, PIN, or password.  For the avoidance of doubt, data shall be deemed Personal Identifying Information if the unauthorized access, use, disclosure, modification, storage, destruction, or loss of that data may trigger the application of any Data Law or any security breach notification under a Data Law.
“Pilot Materials” means the Pilot Software and Documentation, and any and all (a) copies, reproductions, modifications, enhancements, adaptations, translations and other derivative works of, and (b) inventions, improvements, know-how, specifications, performance characteristics, designs, plans, methods, procedures, processes, techniques, software, technology, concepts, information or materials whatsoever (other than Usage Data) comprising, relating to, based on or arising out of, the Pilot Software or Documentation, in whole or in part and however and by whomever originated, including, without limitation, by any technology or device or by Provider, Pilot User, an Authorized User or any other Person, excluding the Confidential Information of Pilot User and any Authorized User.
“Pilot Period” means the period that begins on the Effective Date and one hundred and twenty (120) days after the Effective Date or on such earlier date as may result from the termination of this Agreement in accordance with Section 8.
“Pilot Software” means Provider’s full working version of Manifest software solution in object code form only and all copies of the foregoing permitted under this Agreement, including any interface to such software made available by Provider and any related data and third-party software provided or made available by or for Provider to Pilot User and its Authorized Users.  Software shall include the updates (i.e. any subsequent corrections, updates, patches, modifications or enhancements to the software, and any other releases or versions of Pilot Software made available by or for Provider to such software.
 “Process” means to perform any operation or set of operations on any data, information, material, work, expression or other content, including, without limitation, to (a) collect, receive, input, upload, download, record, reproduce, store, organize, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other improvements or derivative works, (b) process, retrieve, generate, output, consult, use, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or (c) block, erase or destroy. “Processing” and “Processed” have correlative meanings.
“Provider Infrastructure” means the hardware, software, virtualization technology, storage devices and array, servers, power, HVAC systems, networks, hosting, facilities and other tangible elements that are to be used by or for Provider or any Provider Representatives to configure, operate, host, monitor or manage Pilot Software or other Services and to otherwise provide the Pilot Software and other Services in accordance with this Agreement.
“Representatives” means, with respect to a party, that party’s employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, superiors, inferiors, affiliates, and legal advisors.
“Services” mean the Software Services and Supplemental Services.
“Software Services” mean the provision by Provider of, and access to, and use of the Pilot Software and Provider Infrastructure by Pilot User and its Authorized Users as reasonably necessary for productive use of the Pilot Software. Software Services include Provider’s maintenance and management of the Pilot Software and Supplier Infrastructure, technical support, and other service features and functions related to availability, performance, change, service request and security management of the Software and Supplier Infrastructure.  
“Source Code” means the human readable source code of the Pilot Software to which it relates, in the programming language in which the Pilot Software was written.
“Supplemental Services” mean the management, maintenance, implementation, integration, training, support and other services described in any schedule (e.g. Statement of Work, Order) or elsewhere in the Agreement by Provider to Pilot User.    
 “System” means the information technology infrastructure, including, but not limited to, the computers, software, databases, database management and other electronic systems and networks on or with which the Pilot Software is licensed for use pursuant to this Agreement.
 “Third-Party Materials” means materials and information, in any form or medium, including any Open-Source Components or other software, documents, data, content, specifications, products, equipment or components of or relating to any of the Pilot Materials that is not proprietary to Provider.
“Usage Data” means all data, information, materials and other content of any type and in any format, medium or form, whether audio, visual, digital, screen, GUI or other, that is Processed by, for or on behalf of Pilot User or Authorized User by or through any device, system or network, including, but not limited to, any and all works, inventions, data, analyses and other information and materials resulting from any use of the Pilot Materials by Pilot User or any Authorized User under or in connection with this Agreement, except that Usage Data does not include any Pilot Materials or any data, information or content, including, but not limited to, any GUI, audio, visual or digital or other display or output, that is generated automatically upon executing the Pilot Software without additional user input but excluding any Confidential Information or Personal Identifying Information of Pilot User or Authorized User. All output, copies, reproductions, improvements, modifications, adaptations, translations and other derivative works of, based on, derived from or otherwise using any Usage Data are themselves Usage Data.
2.	Pilot License.
2.1	License Grant. Subject to and conditioned upon the Pilot User’s compliance with the terms and conditions of this Agreement, Provider hereby grants Pilot User a  personal, nonexclusive, nontransferable, non-sublicensable, except as permitted herein, license to use the Pilot Software and such Pilot Materials as Provider may deliver or make available to Pilot User solely for the Permitted Use of the Pilot Software on the System during the Pilot Period (the “Pilot License”), including, but not limited to, the rights:
(a)	to install, execute and run the Pilot Software on its computers in the System for use by the Authorized Users; and
(b)	to perform the Authorized Services.
3.	Use Restrictions. Except for Permitted Uses, Pilot User shall not, and shall not permit others to:
(a)	modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of the Pilot Software;
(b)	reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the Source Code, in whole or in part, except if and only to the extent that: (i) this restriction is prohibited by applicable Law; (ii) such action is taken for purposes of ensuring or assessing interoperability or otherwise qualifies as a “fair use” under US Copyright Act or other applicable Law; or (iii) with respect to Open-Source Components used in or in the development of any Source Code or Pilot Materials, these acts are permitted under the applicable open-source license;
(c)	rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Pilot Materials, Third-Party Materials or Source Code to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; or
(d)	access or use any Pilot Materials, Third-Party Materials or Source Code for purposes of competitive analysis of these materials, the development, provision or use of a competing software product or service, or any other purpose that is to the Provider’s detriment or commercial disadvantage.
(e)	THE PILOT SOFTWARE AND OTHER PILOT MATERIALS ARE PROVIDED FOR LIMITED PRODUCTIVE USE PURPOSES ONLY AND NEITHER PILOT USER NOR ANY AUTHORIZED USER MAY ITSELF OR PERMIT OTHERS TO DISTRIBUTE, COMMERCIALIZE, OR INCORPORATE, OR USE IN CONNECTION WITH ANY SOFTWARE OR OTHER PRODUCT OR SERVICE, EXCEPT AS PERMITTED IN THIS AGREEMENT.
4.	Ownership.
4.1	Ownership of Pilot Materials. Subject to the rights expressly granted in this Agreement, Provider (and its licensors, where applicable) and Pilot User (and Pilot User customers) shall each retain all of their respective Intellectual Property Rights.  
4.2	Ownership of Usage Data. Pilot User has, reserves and retains all right, title and interest in and to the Usage Data and Pilot User’s other Confidential Information, including the sole and exclusive ownership of all Intellectual Property Rights relating thereto.
4.3	Rights in Third-Party Materials. The Pilot Software may [be developed with the use of,] include or operate in conjunction with Open-Source Components or other Third-Party Materials. Ownership of all Intellectual Property Rights in such Open-Source Components and other Third-Party Materials remains with the respective owners thereof, subject to Provider’s and Pilot User’s respective rights and licenses under the applicable third-party licenses.  Open-Source Components and Third-Party Materials in Manifest include: Linux, Postgres, Nginx and Node-js.
4.4	No Implied Rights. Nothing in this Agreement grants, by implication, waiver, estoppel or otherwise: (a) Pilot User or any third party any Intellectual Property Rights or other right, title, or interest in or to any Confidential Information of Provider (including, but not limited to, any Source Code or Pilot Materials) or Third-Party Materials, except for the limited rights and licenses expressly granted to Pilot User pursuant to this Agreement or, with respect to Third-Party Materials, the controlling third-party license agreements; or (b) Provider or any third party any Intellectual Property Rights or other right, title or interest in or to any of the Usage Data or Pilot User’s other Confidential Information.
4.5	Proprietary Notices. Pilot User shall not remove from, and shall cause to be affixed to or otherwise displayed in connection with, any copies of the Pilot Materials or Third-Party Materials made by or on behalf of Pilot User all copyright and other Intellectual Property Rights notices accompanying or contained in these materials as received from Provider.
5.	Confidentiality.
5.1	“Confidential Information” is the technical or business information of a Party, its affiliates (and, in the case of Pilot User, its Authorized Users), its customers, its suppliers or other third parties doing business with it that is:  (i) disclosed to, accessed by or otherwise learned by the other Party; and (ii) marked or indicated as confidential (or with words of similar meaning) or would reasonably be expected to be confidential.
5.2	For the term of this Agreement and for five (5) years after the expiration or termination of this Agreement, each Party shall protect the other's Confidential Information with the same care as it protects its own similar information, but not less than commercially reasonable care, and shall not: (i) access or use the other Party’s Confidential Information except as necessary for it to perform its obligations or exercise its rights under this Agreement; or (ii) disclose the other Party’s Confidential Information to, or allow access to the other's Confidential Information by, any individuals or third parties except as provided in Section 5.3 below.
5.3	The receiving Party may disclose relevant aspects of the other's Confidential Information to its employees, directors, advisors (including accountants), suppliers and other agents to the extent necessary for performance of their obligations to such Party under this Agreement; provided, however, that such Party causes the Confidential Information to be held in confidence by the recipient to the same extent and in the same manner as required under this Agreement.  In addition, the receiving Party may disclose the other Party’s Confidential Information to the extent required to comply with laws; provided, however, that such Party provides the other with prior notice of any such disclosure.
5.4	The restrictions on use and disclosure in this Section 5 (Confidential Information) shall not apply to information that is: (i) already known by the receiving Party; (ii) known to the public; (iii) lawfully received by the receiving Party from a third party (and without obligation to keep confidential); or (iv) developed by the receiving Party independently of disclosure by or receipt from the other.
6.	Provider Personnel.  
All personnel of Provider (and Provider Representatives) shall possess the training, skills and qualifications necessary to properly provide the Services. All of the Provider Representatives shall comply with Provider's obligations under this Agreement and Provider shall be responsible for such compliance (i.e., the Provider Representative's actions shall be considered the actions of Provider); however, Provider shall not subcontract any obligation under this Agreement without the prior written approval of Pilot User.  
7.	Service Locations.  
7.1	The primary instance of the Pilot Software used to provide the Software Services will be installed at Provider or Provider Representative’s data center locations identified in a schedule to this Agreement.  The locations from which the Services are provided by Supplier shall have sufficient physical and electronic data security to protect against interruption of, or unauthorized access to, the Pilot Software and Usage Data stored or otherwise in the possession of Provider.  For clarity Provider will utilize its Representative Microsoft’s Azure service offering in a U.S.-based Microsoft data center to provision its Software Services under this Agreement. 
7.2	If any support or Services are provided on sites owned or leased by Pilot User, Provider shall comply with all site rules, regulations and guidelines.
7.3	The Provider locations from which the Support are provided shall have sufficient physical and electronic data security to protect against interruption of Support and access to the Confidential Information of the Pilot User and Authorized Users.
8.	Term and Termination.
8.1	Term. This Agreement commences as of the Effective Date and will continue in effect until the expiration of the Pilot Period and any extensions thereof unless terminated earlier pursuant to any of its express provisions (the “Term”).
8.2	Termination.
(a)	Either Party may terminate this Agreement at any time without cause, and without incurring any obligation, liability or penalty by reason of such termination, on giving the other party at least ten (10) days’ prior written notice of such termination. Provider may also, without any resulting obligation, liability or penalty, deactivate the Pilot Software at any time before or after the expiration of the Pilot Period or the expiration or termination of this Agreement, which deactivation shall constitute notice to Pilot User of the termination of this Agreement.
8.3	Either party may terminate this Agreement effective upon written notice to the other party if the other party breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured ten (10) days after the breaching party receives written notice thereof.
8.4	Either party may terminate this Agreement in accordance with Section 11.2.2 in the event of a claim that any Pilot Materials or use of any Pilot Materials infringes the rights of a third party.
8.5	Effect of Expiration or Termination. Upon the expiration of the Term or the termination of this Agreement in accordance with this Section 8:
(a)	Pilot User shall:
(i)	immediately discontinue all use of and permanently erase or cause to be erased from its and its Authorized Users’ computer systems, files and storage media all copies of the Source Code, Pilot Materials and any other Confidential Information of Provider obtained, made or authorized to be made by Pilot User or on Pilot User’s behalf; and
(ii)	within ten (10) days after such expiration or termination, return or cause to be returned to Provider or, with Provider’s written approval, destroy or cause to be destroyed all copies of documents and tangible materials obtained, made or authorized to be made by Pilot User or on Pilot User’s behalf that contain, reflect, incorporate or are based on the Source Code, Pilot Materials or any other Confidential Information of Provider, and certify in writing to the Provider that it has complied with the requirements of this Section 8.5.
8.6	Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 1, Section 4, Section 5, Section 8.5, this Section 8.6, and Section 12.
9.	Representations and Warranties.
9.1	Provider represents, warrants and covenants that during the term of the Agreement:  (i) Provider owns or otherwise has the right to provide the Pilot Software, the Software Services, Supplemental Services, and Deliverables to Pilot User under this Agreement; (ii) the Pilot Software, Software Services, Supplemental Services and Deliverables do not, and use thereof shall not, infringe a third party's Intellectual Property Rights; (iii) the Services shall be performed in a good, prompt and professional and workman like manner by a sufficient number of qualified personnel (as to training, skill and experience) and consistent with industry standards and best practices; (iv) the Pilot Software shall conform to and perform in accordance with the Documentation; (v) the Pilot Software shall not contain (and Provider and the Pilot Software shall not introduce into Pilot User's computer systems) any virus or disabling code (where a “virus or disabling code” is any device or code that (A) is designed to disable, restrict use of, lock, erase, otherwise harm software, hardware or data, (B) enables self-help or (C) permits unauthorized monitoring of Authorized User transactions or behavior).
9.2	Provider shall, at no additional cost to Pilot User, promptly correct any failure to comply with the representations and warranties in this Section 9 (Representations and Warranties).  If not corrected, Pilot User (in its discretion) may:  (i) extend the time for Provider to correct; (ii) receive an appropriate, agreed-upon reduction in all Pilot Software, Software Services, Supplemental Services and associated fees (which shall be promptly refunded to Pilot User if the fees have been prepaid); or (iii) promptly receive a refund of all amounts paid under this Agreement, provided Pilot User ceases using the affected Services (and this Agreement will be considered terminated for cause).  If Pilot User selects Section 9.2(i) above but the failure is not corrected within the extended time, Pilot User shall have the same three options above. 
9.3	DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH IN SECTION 9, ALL LICENSED SOFTWARE, DOCUMENTATION AND OTHER PRODUCTS, INFORMATION, MATERIALS AND SERVICES PROVIDED BY LICENSOR ARE PROVIDED “AS IS.” LICENSOR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER (INCLUDING ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE), AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, LICENSOR MAKES NO WARRANTY OF ANY KIND THAT THE LICENSED SOFTWARE OR DOCUMENTATION, OR ANY OTHER LICENSOR OR THIRD-PARTY GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE OR HARDWARE), OR ANY PRODUCTS OR RESULTS OF THE USE OF ANY OF THEM, WILL MEET LICENSEE’S OR OTHER PERSONS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE, HARDWARE, SYSTEM OR NETWORK), OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL OPEN-SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN LICENSEE AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN-SOURCE COMPONENTS AND THIRD-PARTY MATERIALS.
10.	Limitations of Liability.
10.1	Except as provided in Section 10.2 below: (i) neither Party shall be liable to the other Party under this Agreement for any indirect, incidental, special, consequential or punitive damages; and (ii) the aggregate liability of either Party to the other Party for damages under this Agreement shall not exceed two hundred fifty thousand dollars ($250,000) or five times the aggregate charges paid or payable under this Agreement, whichever is greater.
10.2	The limitations of liability Section 10.1 above shall not apply to:  (i) breach by either Party of its confidentiality obligations in Section 5 (Confidentiality); (ii) breach of warranties in Section 9.1(i), (ii) or (v) by Provider; (iii) a Party’s indemnification obligations in the Agreement; (iv) fraud, negligence or willful misconduct by either Party, or (v) loss, corruption, or unauthorized destruction, disclosure or access to Usage Data caused by Provider’s failure to observe or perform its obligations hereunder.
11.	Indemnification. 
11.1	Mutual.
Each Party shall defend and indemnify the other Party from and against any loss, liability (including settlements, judgments, fines and penalties) or costs (including reasonable attorney fees, court costs and other litigation expenses) relating to any action, suit or proceeding against the indemnified Party by a third party (including a government agency or the employees of either Party) that arises from: (i)  fraud, negligence, willful misconduct or breach of any representation or warranty in this Agreement by the indemnifying Party; (ii) violation of law; or (iii)  injury or death of any person, loss of or damage to any real or tangible property or damage to the environment resulting from the negligent acts or omissions or an intentional or reckless act to cause harm by the indemnifying Party.
11.2	Provider Intellectual Property Indemnity.
11.2.1	Provider will indemnify, defend and hold harmless Pilot User  and Authorized Users from and against any and all loss, liability (including settlements, judgments, fines and penalties) or costs (including reasonable attorney fees, court costs and other litigation expenses) alleging that rendering or use of any Pilot Software, Deliverable or any Service infringes or misappropriates any Intellectual Property Right of a third party.  Provider shall have no duty to indemnify, defend, or hold harmless under this Section 11.2 (Provider Intellectual Property Indemnity) to the extent the allegation of infringement or misappropriation is due solely to (A) modification (without Provider’s consent) of the affected Pilot Software, Deliverable or other Services by Pilot User in a manner that is inconsistent with the ordinary and customary use of the Pilot Software, Deliverable or other Services for its/their intended purpose as contemplated by this Agreement, or (B) combination of the Pilot Software with software not provide by or for Provider where the combination is not (I) reasonably required to use the Software Services or Supplemental Services for its/their intended purpose as contemplated by this Agreement, the Documentation or the specifications, or (II) approved by Provider. 
11.2.2	Should use of any Pilot Software, Software Services, Supplemental Services, or Deliverable  by Pilot User or its Authorized Users or Provider’s rendering of same become, or is likely to become, the subject of a third-party infringement or misappropriation claim, Provider will, at its expense, (A) procure for Pilot User the right to continue using the affected Pilot Software, Software Services, Supplemental Services, or Deliverable free of any liability, or (B) replace or modify, in whole or in part, the Pilot Software, Software Services, Supplemental Services, or Deliverable  so as to be non-infringing, provided however the replacement or modified products or services offer comparable functionality and performance and are otherwise acceptable to Pilot User.  If Provider is unable to avoid the alleged infringement or misappropriation under item (A) or (B) of this Section 11.2.2 to Pilot User’s reasonable satisfaction, Pilot User may, without incurring any liability, terminate this Agreement on prior written notice to Provider.
12.	Miscellaneous.
12.1	Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
12.2	Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
12.3	Assignment. Pilot User shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement. No delegation or other transfer will relieve Pilot User of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 12.3 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
12.4	Export Regulation. Pilot User shall not itself, or permit any third parties to, export, re-export or release, directly or indirectly any Controlled Technology to, or make any Controlled Technology accessible from, any country, jurisdiction or Person to whom or which the export, re-export or release, directly or indirectly of any Controlled Technology is prohibited by applicable Law. Pilot User shall comply with all applicable Laws relating to, and complete all required undertakings (including, without limitation, obtaining any necessary export license or other governmental approval) prior to, any exporting, re-exporting, releasing or otherwise making available any Controlled Technology.
12.5	No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.
12.6	Amendment and Modification; Waiver. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
12.7	Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to affect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
12.8	Each Party shall comply with all laws, ordinances, rules, regulations and court (or other governmental) orders applicable to it in connection with this Agreement (collectively, “Laws”).  In particular, Provider shall comply with any Laws covering the production, sale, use, access, export or delivery of the Pilot Software and Services including the following (if Provider conducts business in the United States): (a) Affirmative Action Compliance Program; (b) Affirmative Action - Disabled Veterans and Veterans of the Vietnam Era; (c) Affirmative Action - Handicapped Workers; (d) Equal Opportunity; (e) Employer Information Report SF-100, annual filing; (f) Fair Labor Standards Act of 1938, as amended; (g) Prohibition of Segregated Facilities; and (h) Small Business Concerns, Small Disadvantaged Business Concerns, and Women Owned Business Concerns.
12.9	Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Washington without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Washington. Any legal suit, action or proceeding arising out of or related this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Washington, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
12.10	Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
12.11	Equitable Remedies. Pilot User acknowledges and agrees that (a) a breach or threatened breach by Pilot User of any of its obligations under this Agreement would cause the other party irreparable harm for which monetary damages would not be an adequate and agrees that, in the event of such breach or threatened breach, Provider will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.