InterChange License Agreement

This License Agreement is a legal agreement between Akumina Inc., a Delaware corporation ("Akumina"), and the legal entity or person on behalf of which or whom you are accepting this License Agreement ("Subscriber"). By purchasing, downloading, accessing or utilizing the InterChange software, Subscriber agrees to be bound by the terms of this Agreement and agrees that these terms are incorporated by reference into any Purchase Agreement or purchase order entered into by and between Akumina and Subscriber (the "Purchase Agreement").

Capitalized terms not defined elsewhere in this Agreement are defined in the last Section below.

1. Product(s) Purchased. This Agreement shall apply to the InterChange product(s) identified in the Purchase Agreement and to any other Akumina products which Subscriber has subscribed for or licensed or may subscribe for or license from Akumina in the future, unless Akumina provides a separate license agreement for such other or additional products.
2. License Rights. During the term of this Agreement and subject to compliance with the terms of this Agreement and the Purchase Agreement, including timely payment of all fees, Akumina grants to Subscriber a non-exclusive and nontransferable right and license to use the Service solely for Subscriber's internal business purposes. Subscriber's license is limited to (a) use of the InterChange software in a single on-premises production environment (for each domain purchased by Subscriber) or in a single production tenant within a SharePoint deployment in Office365, (b) use of another copy of the InterChange software solely for internal testing purposes, and (c) use of an additional copy of the InterChange software solely for internal development purposes. Subscriber agrees that Akumina may audit Subscriber's use of the Service, from time to time upon reasonable notice to Subscriber and in a manner minimizing disruption to Subscriber's business operations, to ensure compliance with the use restrictions contained in the preceding sentence.
3. Intellectual Property Rights. Subscriber acknowledges that (a) as between Akumina and Subscriber, all right, title and interest in and to the Service (including without limitation the Akumina Technology), and any and all patents, copyrights, trade secret rights, trademarks, trade names and other proprietary rights embodied in or associated with any of the foregoing, are and will remain the property of Akumina, and this Agreement in no way conveys any right or interest in the Service or the Akumina Technology other than a limited right and license to use them in accordance herewith, (b) the Service and the Akumina Technology are works protected by the copyright and other laws of the United States and international treaties, and (c) Akumina asserts that the Service and the Akumina Technology embody valuable confidential and proprietary information of Akumina, the development of which required the expenditure of considerable time and money. Subscriber agrees not to challenge or otherwise attempt to assert any rights in the Akumina Technology except those rights provided to Subscriber under this Agreement. The Service may include software or functionality the rights to which are owned by third parties (collectively "Third-Party Owners"), and Subscriber agrees that such Third-Party Owners are third-party beneficiaries of this Agreement to the extent of their interest in such software or functionality.
4. Subscriber's Obligations and Restrictions. Subscriber may not license, sublicense, sell, resell, transfer, assign, distribute or otherwise exploit, commercially or otherwise, the Service or the Akumina Technology or make the Service or the Akumina Technology available to any third party other than Subscriber's employees and any other persons that Subscriber has authorized, with the prior consent of Akumina, to have access to the Service, who have been supplied user identifications and passwords by Subscriber (collectively, "Subscriber's Authorized Users"). Subscriber shall at all times remain solely responsible for the content of Subscriber Data and shall indemnify and hold harmless Akumina from and against any claims by third parties arising from or related to Subscriber Data, including claims that Subscriber Data infringes or violates their rights.
5. Confidentiality. Each party acknowledges that during the term of this Agreement, it may have access to or otherwise obtain non-public information that is confidential and proprietary to the other party ("Confidential Information"). The parties agree that any and all Akumina intellectual property (including without limitation the Akumina Technology) and Subscriber Data are Confidential Information. Each party agrees that it will (a) only use the other party's Confidential Information for the purposes contemplated by this Agreement and the Purchase Agreement; (b) not use for its own benefit or knowingly disclose to, or use for the benefit of, any other person any Confidential Information of the other party without the other party's prior written consent; (c) use at least the same degree of care and caution to protect the other party's Confidential Information from disclosure that it employs with respect to its own confidential information, but in no event less than a reasonable degree of care and caution; (d) disclose the other party's Confidential Information only to those of its employees, agents, consultants or contractors who require access to it in order for the party to be able to perform its obligations under this Agreement or the Purchase Agreement; and (e) ensure that any such persons allowed such access agree in writing to satisfy the foregoing obligations or are otherwise bound by similar obligations to keep such information confidential. This Section will not apply to any information which (i) is or becomes publicly available through no fault of the receiving party; (ii) is already in the receiving party's possession without restriction on disclosure when disclosed by the disclosing party to this Agreement; (iii) is independently developed by the receiving party without use of the Confidential Information of the disclosing party; or (iv) is rightfully obtained by the receiving party from a third party without violating the rights of the disclosing party.
6. Limited Warranties, Limitations of Liability, and Indemnity.
   
   6.1 Limited Warranty. Akumina warrants, for the benefit solely of Subscriber, that the InterChange software that is provided to Subscriber as part of the Service will conform in all material respects to Akumina's published documentation relating to that edition of the software and that the portion of the Service that consists of services will be provided in a competent and professional manner in accordance with the practices and quality standards generally accepted in the industry. Akumina's sole obligation and Subscriber's exclusive remedy with regard to the warranty contained in this Section 6.1 shall be to repair the Service to bring it into compliance with such warranty. Any repaired Service shall be warranted under this Section 6.1 for the remainder of the original warranty period.
   
   6.2 Indemnification for Infringement. If a claim is made that the Service or Subscriber's use of the same as permitted by this Agreement directly infringes a valid United States patent, copyright, trademark or trade secret, Akumina will indemnify Subscriber and hold it harmless against such claim and resulting costs, damages and reasonable attorney's fees finally awarded or agreed to in settlement, provided that (a) Subscriber promptly notifies Akumina in writing of the claim, and (b) Akumina has sole control of the defense and all related settlement negotiations, provided that Akumina shall not enter into any settlement that adversely affects Subscriber without Subscriber's written approval. Subscriber may be represented by separate counsel at its own expense. Akumina's obligations under this Section 6.2 are conditioned on Subscriber's agreement that if the Service, or the use or operation thereof, becomes, or in Akumina's opinion is likely to become, the subject of such a claim, Akumina may at its option and expense, either procure the right for Subscriber to continue using the Service, or replace or modify the same so that it becomes non-infringing (provided such replacement or modification does not materially adversely affect Subscriber's intended use of the Service as contemplated hereunder). If neither of the foregoing alternatives is available on terms that are commercially reasonable in Akumina's judgment, Subscriber will discontinue its use of the Service on written request by Akumina. Akumina will have no liability for any claim based upon the combination, operation or use of the Service with equipment, software or data not supplied or expressly recommended in writing by Akumina if such claim would have been avoided by use of other equipment, software or data. THE FOREGOING STATES THE ENTIRE REMEDY OF SUBSCRIBER AND THE SOLE OBLIGATION OF AKUMINA WITH RESPECT TO INFRINGEMENT CLAIMS.
   
   6.3 Disclaimer of Other Warranties. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, BY OPERATION OF LAW OR OTHERWISE, REGARDING OR RELATING TO THE SERVICE OR TO ANY OTHER MATERIALS, GOODS OR SERVICES FURNISHED TO SUBSCRIBER HEREUNDER OR IN CONNECTION HEREWITH. AKUMINA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT LIMITED TO STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF PRODUCTS, WHETHER MADE BY AKUMINA EMPLOYEES OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT, WILL BE DEEMED TO BE A WARRANTY BY AKUMINA FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF AKUMINA WHATSOEVER. Akumina does not warrant that the Service will meet Subscriber's requirements or that the operation of the Service will be uninterrupted or error free or that all defects will be corrected. The limited warranty contained in Section 6.1 is void if failure of the Service has resulted from modification or misuse of the Service by Subscriber or any third party.
   
   6.4 Limitation of Liability. REGARDLESS OF THE FORM OF ACTION, IN NO EVENT SHALL AKUMINA'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID TO AKUMINA IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFIT OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE PURCHASE AGREEMENT, THIS AGREEMENT OR THE SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FOR WHICH DAMAGES ARE BEING SOUGHT HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY SUCH DAMAGES. IN NO EVENT WILL AKUMINA HAVE ANY LIABILITY FOR THIRD PARTY PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMITATION THOSE BUNDLED, INTEGRATED OR OTHERWISE ASSOCIATED WITH AKUMINA PRODUCTS OR SERVICES.
7. Internet Delays. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE THE INTERNET AND ELECTRONIC COMMUNICATIONS. AKUMINA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
8. Export Control. Subscriber may not export, ship, transmit, or re-export the Service in violation of any applicable law or regulation, including, without limitation, the Export Administration Regulations issued by the United States Department of Commerce, or any such similar law or regulation issued by such other governmental entity which may have jurisdiction over such export.
9. Term and Termination. This Agreement shall become effective upon execution of the Purchase Agreement or when electronically acknowledged/downloaded (or otherwise acknowledged in writing) by Subscriber and shall remain in effect until expiration or termination as provided herein. The Purchase Agreement and this Agreement, and Subscriber's access to the InterChange software platform and all related services provided by Akumina, may be terminated by either Subscriber or Akumina effective upon the expiration of the then-current term, by notifying the other party in writing at least sixty (60) days prior to the expiration of the then-current term. In addition, either party may terminate the Purchase Agreement and this Agreement, effective upon the giving of written notice, in the event of a material breach of the Purchase Agreement and/or this Agreement, provided that if such breach is capable of being cured and is cured within thirty (30) days of the aggrieved party's written notice, the Purchase Agreement and this Agreement shall remain in effect. Without limitation, any breach of Subscriber's payment obligations or unauthorized use of the Akumina Technology or the Service will be deemed a material breach.
10. Binding Effect; Assignment. This Agreement and the Purchase Agreement shall be binding upon and inure to the benefit of the parties and their respective successors or permitted assigns. Either Subscriber or Akumina may assign this Agreement and the Purchase Agreement and the rights granted hereunder and thereunder either (i) with the prior written consent of the other party, such consent not to be unreasonably withheld or delayed, or (ii) in connection with a Change of Control Transaction. As used herein, a "Change of Control Transaction" shall mean: (i) a merger or consolidation of such party with or into another entity with respect to which less than a majority of the outstanding voting power of the surviving or consolidated company immediately following such event is held, directly or indirectly, by persons who held such power immediately prior to such event; (ii) a sale or transfer of more than 50% of the consolidated properties and assets of such party; or (iii) an acquisition of a majority of the voting power of such party by persons who were not security holders of such party immediately prior to such event.
11. Relationship of the Parties. Akumina and Subscriber are independent contractors, and nothing in this Agreement will be construed as making them partners or as creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever. Neither party will make any contracts, warranties or representations or assume or create any other obligations, express or implied, in the other party's name or on its behalf.
12. Force Majeure. In no event will either party be liable for any delay or failure to perform under this Agreement or the Purchase Agreement (except obligations to make payments as and when due) that is due to causes beyond the reasonable control of such party.
13. Notices. All notices given under this Agreement and/or and the Purchase Agreement will be given in writing, will reference this Agreement and/or and the Purchase Agreement and will be deemed to have been delivered and given when delivered (a) by registered or certified U.S. mail, return receipt requested, postage and charges prepaid; (b) by a commercial courier, with written verification of receipt; or (c) by email with electronic delivery confirmation. All notices will be sent to the following addresses or to any replacement address of which the other party has been given notice in accordance with this Section: (i) in the case of Akumina, to it at Akumina Inc., 30 Temple St, Nashua, NH 03060, or info@akumina.com; and (ii) in the case of Subscriber, to it at the address provided by Subscriber for such notice purposes in its Purchase Agreement or in any other writing provided to Akumina.
14. Entire Agreement; Amendments. This Agreement, together with the Purchase Agreement(s), contains the entire agreement between the parties relating to the matters covered by it, superseding all other oral or written representations, understandings, proposals or other communications between the parties. In the event of any conflict between the terms of the Purchase Agreement and the terms of this Agreement, the terms of the Purchase Agreement shall prevail. Neither this Agreement nor the Purchase Agreement may be amended or modified except by a written instrument signed or electronically acknowledged and accepted by duly authorized representatives of both parties.
15. Severability. In the event that any provision of this Agreement is for any reason void or unenforceable in any respect, such provision will be without effect to the extent of the voidness or unenforceability without affecting such provision in any other respect and without affecting any other provision.
16. Governing Law and Venue. This Agreement and the Purchase Agreement shall be governed by and construed in accordance with the laws of the State of New Hampshire without giving effect to any choice or conflict of laws provision that would cause the application of the laws of any other jurisdiction. Any mediation, arbitration, or judicial action commenced under the terms of this Agreement and/or and the Purchase Agreement shall take place in the State of New Hampshire.
17. Publicity. Each of Akumina and Subscriber consent to the use by the other party of its name and logo, including any proprietary marks incorporated therein, on or in the other party's website and/or marketing materials and the identification of it as a customer of or service provider to such other party, as applicable.
18. Definitions. As used in this Agreement: "Agreement" means this InterChange License Agreement, as amended; "Akumina Technology" means all of Akumina's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Subscriber by Akumina in providing the Service; "Service" means the specific edition of Akumina InterChange software identified during the ordering process, developed, operated, and maintained by Akumina and/or ancillary services rendered to Subscriber by Akumina, to which Subscriber is being granted access under this Agreement, including the Akumina Technology, as further described in the Purchase Agreement; "Subscriber Data" means any data, information or material created by Subscriber that is provided or submitted by Subscriber to the Service in the course of using the Service.