Pre-Order Program Agreement

TERMS AND CONDITIONS OF SALE

Last updated: November 8, 2016

PLEASE READ THE FOLLOWING TERMS CAREFULLY, AS PURCHASING, LICENSING AND/OR USING THE RELATED PRODUCTS, SOFTWARE, OR SERVICES INDICATES AGREEMENT WITH, AND ACCEPTANCE, OF THESE TERMS.

THESE ARE THE CURRENT TERMS AND CONDITIONS OF SALE (“TERMS”) OF AXXANA LTD AND/OR ITS AFFILIATES (COLLECTIVELY, “AXXANA”), WHICH APPLY TO ANY SALE OF ANY AXXANA PRODUCT, LICENSING OF ACCOMPANYING SOFTWARE, AND/OR THE PROVISION OF SUPPORT SERVICES (THE TERMS “PRODUCT”, “SOFTWARE” AND “SUPPORT SERVICES”, AS DEFINED BELOW). YOU, ON BEHALF OF YOURSELF AS AN INDIVIDUAL, YOUR EMPLOYER, OR ANOTHER ENTITY WHICH HAS NOT PREVIOUSLY ACCEPTED THESE TERMS (YOU AND SUCH ENTITIES, COLLECTIVELY, “CUSTOMER”), REPRESENT AND WARRANT THAT CUSTOMER HAS AUTHORITY TO ACCEPT, AND HAS READ, UNDERSTOOD AND AGREED TO, THESE TERMS. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, YOUR SUBMISSION OF AN ORDER (DEFINED BELOW), OR ANY DOWNLOAD, ACCEPTANCE OR USE BY CUSTOMER OF ANY AXXANA PRODUCT(S), SOFTWARE, AND/OR SERVICES SHALL CONSTITUTE AN IRREVOCABLE ACCEPTANCE OF THESE TERMS. IF CUSTOMER DOES NOT HAVE SUCH AUTHORITY OR DOES NOT AGREE TO BE BOUND BY THESE TERMS, THEN CUSTOMER MUST NOT SUBMIT AN ORDER TO AXXANA OR USE THE PRODUCT, AND IF THE PRODUCT HAS ALREADY BEEN DELIVERED TO CUSTOMER, IT SHALL PROMPTLY RETURN SUCH PRODUCT, INCLUDING THE SOFTWARE AND REFRAIN FROM USING ANY RELATED SERVICES. AS USED HEREIN, “AFFILIATE” MEANS AN ENTITY THAT CONTROLS, IS CONTROLLED BY OR IS UNDER COMMON CONTROL WITH AXXANA LTD, WHERE “CONTROL” MEANS OWNERSHIP OF MORE THAN FIFTY PERCENT (50%) OF THE VOTING EQUITY SECURITIES OF AN ENTITY.

1. Scope of Terms; Orders. These Terms govern (a) Customer’s purchase and use of the Product, as further specified herein; and (b) Axxana’s performance of Support and Maintenance Services (the “Support Services”) as specified in Axxana's Support and Maintenance Services Terms and Conditions attached hereto as Exhibit A (the “Support Terms”), solely if Customer purchases such services directly from Axxana, in each case of clause (a) and (b) above as shall be specified in a purchase order agreed by the parties (the “Order”). No terms in an Order shall be binding on Axxana unless accepted and acknowledged by Axxana in writing. Axxana shall not be deemed to have accepted any terms or conditions (including price and lead time) on an Order based on a prior course of dealing.

2. Software License. Subject to Customer’s payment of the applicable Product fees payable to Axxana, and the terms and conditions of this Agreement, Axxana grants to Customer a limited, personal, nonexclusive, nontransferable, non-sublicensable, perpetual license to use, in binary executable form only, the Axxana software solely as bundled in and with the Axxana product specified in the applicable Order (the “Software”) for Customer’s internal business purposes only. Such product, including any hardware components specified in the Order (the “Hardware”) and the Software, is referred to herein collectively as the “Product”. Customer may make one copy of the Software (as described in the applicable Order) in machine readable form for backup or archival purposes only, provided that such copies must include all copyright or other proprietary notices contained in the original.

3. Restrictions. Except as expressly permitted by these Terms or applicable law notwithstanding these restrictions (and then only to the extent so permitted), Customer shall not, directly or indirectly: (a) rent, lease, sublicense, distribute, or otherwise transfer the Software to any third party, use the Software for timesharing or service bureau purposes, or otherwise use the Software for any commercial purpose for or on behalf of any third party; (b) transfer, assign, or pledge Customer’s rights under these Terms, without obtaining the prior written consent of Axxana; (c) reverse engineer or disassemble the Product’s Hardware components or any portion thereof, or reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or structure, sequence and organization of the Software; (d) copy, modify, adapt, translate or create derivative works based on the Software (or copies thereof) or any Documentation (defined below); (e) integrate, incorporate, include or bundle the Software or any part thereof, into or with any other software or hardware without receiving the prior written consent of Axxana; or (f) use the Software to perform any "benchmarking" activities, either alone or in connection with any software or hardware. As used herein, "Documentation" means Axxana's user manuals that are delivered with the Product which describe the features, functionality and proper use of the Product. Documentation does not include marketing materials.

4. Ownership; Copyright Protection. Customer acknowledges that the Software bundled in or with the Product is licensed to Customer, not sold. As between the parties, all intellectual property rights (including without limitation all copyrights, patents, trade secret rights and trademarks) in and to the Product shall remain in Axxana. Customer will not acquire any rights to use the Software except as expressly set forth in these Terms. The Software is protected by applicable copyright laws, international treaty provisions and other applicable laws. Customer acknowledges that the source code form of the Software remains a confidential trade secret of Axxana and/or its Affiliates or suppliers. Customer shall not remove or modify any copyright or other proprietary notices on the Product.

5. Limited Product Warranty.

5.1 Warranty Period. During the initial one (1) year period commencing on the date that the Product is purchased by Customer, as evidenced by the Product’s original sales receipt, Axxana warrants to Customer, subject to the terms and conditions of this Section 5, that (a) the Hardware components included within the Product will be free from defects in materials and workmanship and will substantially comply with the applicable specifications set out in the Documentation; and (b) the Software components included within the Product will substantially comply with the applicable specifications set out in the Documentation (collectively, the “Product Warranty”.)

5.2 Warranty Service. In the event Customer notifies Axxana in writing within the Product Warranty period specified above (the “Warranty Period”), of a warranty claim Axxana will (a) in the case of the Hardware, repair or replace the defective Hardware component(s) with new or refurbished part(s); or (b) in the case of the Software, make commercially reasonable efforts to provide a fix, patch or workaround, which may be included in a future Software release, all at no additional charge to Customer. Any repairs, fixes, or replacement parts provided as part of the foregoing warranty service are warranted for the remainder of the applicable Warranty Period, as then in effect.

5.3 Warranty Service Exclusions. Warranty services described above exclude, and Axxana shall have no responsibility hereunder to support, any and all of the following:

(a) Products that have been altered, modified, or (in the case of the Product Hardware) opened by Customer or any third party other than Axxana’s authorized customer support personnel.

(b) Software that has been incorporated or bundled with other software or hardware not provided by Axxana;

(d) Damage to the Hardware or Software caused by Customer’s negligence, abuse or use other than as specified in the Product Documentation, natural disasters, acts of God (such as but not limited to, lightening, flooding, tornado, earthquakes and hurricanes), or other factors beyond the control of Axxana.

(e) Redesigning, rearchitecting or reconfiguring a Customer's network; or training, program coding, system design, applications development, project management, facilities management, or third party products not expressly included within the Product.

(f) Software problems not reproducible by Axxana.

(g) Any action or service not specifically mentioned in Product Warranty service.

5.4 Support of Third Party Components. Notwithstanding anything herein to the contrary, Support Services with respect to third party Hardware and Software components included with the Product are provided in accordance with the support terms and conditions of their respective third party providers, and Customer reports to Axxana regarding defects or errors in such third party components will be routed to the applicable third party provider for resolution. Axxana will provide Customer with periodic reports on the status of any error correction to be provided by such third party provider. For clarity, the service levels set forth in the Support Terms shall not apply to any Support Services for third party Hardware and Software components included with the Product.

5.5 Responsibilities for Problems Not Caused By Product Defects. If Axxana believes that a problem reported by Customer within the applicable Warranty Period may not be due to a defect in the Product, Axxana will so notify Customer. At that time, Customer may either (1) instruct Axxana to proceed with problem determination at Customer's possible expense as set forth below; or (2) instruct Axxana that Customer does not wish the problem pursued at Customer’s possible expense.

(a) If Customer requests that Axxana proceed with problem determination at Customer's possible expense and Axxana determines that Customer does not have a valid Product Warranty claim, Customer shall pay Axxana, at Axxana's then-current and standard consulting rates, for all work performed in connection with such determination, plus reasonably related expenses incurred therewith. Customer shall not be liable for (i) problem determination or repair to the extent problems are due to Products in breach of the Product Warranty, (ii) work performed under this paragraph in excess of its written instructions or (iii) work performed after Customer has notified Axxana in writing that it no longer wishes work on the problem determination to be continued at Customer's possible expense (such notice shall be deemed given when actually received by Axxana).

(b) If Customer instructs Axxana that it does not wish the problem pursued at Customer's possible expense or if such determination requires effort in excess of Customer's instructions, Axxana may, at its sole discretion, elect not to investigate the problem without liability.

5.6 Customer Responsibilities. As a condition to Axxana’s obligations under these Support Terms, the Customer shall have the following responsibilities:

(a) Authority to Grant Access. Customer represents and warrants that it has obtained permission for Customer, Axxana and Axxana's authorized third party provider to access and use the Product, the data on it, and all Hardware and Software components included in it, for the purpose of providing these Product Warranty services, including without limitation, where Axxana provides onsite and/or remote Product Warranty services. If Customer does not already have that permission, it is Customer’s responsibility to obtain it, at Customer’s expense, before Customer seeks performance of these Product Warranty services.

(b) Cooperate with Axxana Telephone and Onsite Support Personnel Technician. Customer agrees to cooperate with and follow the instructions given by Axxana’s Product Warranty services personnel.

(c) Third Party Warranties. These Product Warranty services may require Axxana or its authorized third party provider to access hardware or software that is not provided by Axxana as part of the Product. Some manufacturers’ warranties may become void if Axxana, its authorized third party provider or anyone else other than the manufacturer works on the hardware or software. It is Customer’s responsibility to ensure that Axxana or its authorized third party provider’s performance of Product Warranty services will not affect such warranties or, if it does, that the effect will be acceptable to Customer. NEITHER AXXANA NOR ITS AUTHORIZED THIRD PARTY PROVIDER TAKES RESPONSIBILITY FOR THIRD PARTY WARRANTIES OR FOR ANY EFFECT THAT THE PRODUCT WARRANTY SERVICES MAY HAVE ON THOSE WARRANTIES.

(d) Onsite Obligations. If Axxana determines that it in order to perform its Product Warranty services it must do so at Customer’s premises on which the Product is located and/or remotely, Customer must provide free, safe and sufficient access to Customer’s facilities and the Product and any associated computer equipment on which the Product is installed. Sufficient access includes ample working space, electricity, VPN and a local telephone line.

5.7 High Risk Activities. Customer acknowledges that the Product is not specifically designed or intended for use in environments in which the failure of the Product could lead directly to death, personal injury, or severe physical or property damage (collectively, "High Risk Activities"). Without limiting the generality of Section 5.8 (Warranty Disclaimer) below, Axxana expressly disclaims any express or implied warranty of fitness for High Risk Activities.

5.8 Warranty Disclaimer. EXCEPT AS EXPLICITLY SET FORTH IN THESE TERMS, THE PRODUCT IS PROVIDED "AS IS". AXXANA DOES NOT WARRANT THAT THE PRODUCT WILL MEET CUSTOMER'S REQUIREMENTS, THAT THE SOFTWARE WILL OPERATE IN THE COMBINATIONS WHICH CUSTOMER MAY SELECT FOR USE, THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERROR CONDITIONS WILL BE CORRECTED. ADDITIONALLY, AXXANA DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, AND NON-INFRINGEMENT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THESE TERMS. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO CUSTOMER.

6. Support Services. If Customer purchases Support Services directly from Axxana pursuant to an Order, Axxana will provide such services to Customer in accordance with the Support Terms for an initial period as shall be specified in the Order (“Initial Support Term”). Support Services may be renewed for additional twelve (12) month periods, payable at Axxana’s then current Support Services rates, if so requested by Customer and agreed by Axxana, if and to the extent so specified in the Order; provided, that either party may terminate Support Services at the end of the Initial Support Term or at the end of any renewal term by giving written notice to the other party at least ninety (90) days prior to the end of such term. Axxana may suspend or cancel Support Services if Customer breaches these Terms, the terms of the Order, and/or any other material term or condition of the Support Terms and such breach is not remedied within thirty (30) days (or 10 days in the case of nonpayment) after Customer receives notice of the breach.

7. Pricing and Payments

7.1 Pricing. If purchasing the Product or Support Services directly from Axxana pursuant to an Order, Customer will pay Axxana the fees set forth in the Order and expenses as specified in Section 7.3 (Shipping Terms) below, if applicable.

7.2 Payment Terms. To the extent the Product and/or Support Services are ordered by Customer directly from Axxana, payment of the fees set out in the applicable Order are due within thirty (30) days after the date that Customer orders the same from Axxana, provided that fees for Support Services for each Product purchased by Customer pursuant to an Order will be paid in advance of the Initial Support Term and any agreed renewal period during which such Support Services will be provided to the Customer. For greater clarity, Axxana will not commence to perform Support Services until it receives advance payment in full of the applicable Support Services fee. Customer will pay all amounts due to Axxana in US dollars by wire transfer to an Axxana bank account that Axxana shall designate. Customer will bear all bank charges associated with the sending of outbound wire transfers. Axxana will bear all bank charges associated with receipt of inbound wire transfers. Any payment which is properly due pursuant to an Order and is not paid by the due date will incur interest at a rate of one and one-half percent (1.5%) per month, not to exceed the maximum amount allowed by law. Customer will pay any late payment charge upon remitting the principal amount to Axxana.

7.3 Shipment Terms. Where Customer orders the Product directly from Axxana, unless otherwise agreed by the parties in writing, (a) Axxana will ship the Product FCA, Axxana’s premises (as defined by INCOTERMS 2010); and (b) Customer shall bear all expenses of the shipment and risk of loss will transfer to Customer upon Axxana’s delivery to a common carrier for shipment. Any use of "EX WORKS", "FOB" or other INCOTERMS in an accepted and acknowledged Order will apply only to price, but not as to risk of loss or passage of title. Title to the Product will only pass to Customer, subject to the terms and conditions of these Terms, including without limitation, Sections 3 (Restrictions) and 4 (Ownership; Copyright Protection) above, upon Customer’s payment in full of the Product fees specified in the Order.

7.4 Taxes. All stated prices are exclusive of any and all taxes, fees and duties or other amounts, however designated, including sales, use, withholding and value added taxes which are levied or based upon such charges, or upon these Terms. Any taxes related to the Products and/or Support Services, as applicable, purchased directly from Axxana pursuant to these Terms shall be paid by Customer or Customer shall present an exemption certificate acceptable to the taxing authorities. For the avoidance of doubt, this Section 7.4 shall not impose any obligation on Customer to pay or reimburse Axxana for taxes based on Axxana’s income.

7.5 Nonpayment. Without limiting any other rights or remedies available to Axxana hereunder or under applicable law, Axxana may seek the repossession of the Product if Customer fails to pay the Product fees to Axxana (if purchased directly from Axxana) and/or suspend or cancel Warranty Services if Customer fails to pay the Product fees to Axxana, or suspend or cancel Support Services if Customer fails to pay the Support Services fees to Axxana (if ordered by Customer directly from Axxana) in a timely manner, provided that Axxana shall notify Customer of such impending suspension or cancellation and provide Customer ten (10) days in which to pay such fees.

8. Term and Termination. These Terms shall continue until terminated as set forth in this section. Customer may terminate the Software license granted herein at any time upon written notice to Axxana by disconnecting the Product, and destroying all copies of the Software and Documentation. Axxana may terminate the Software license granted herein and/or these Terms upon written notice to Customer, if Customer materially breaches such license or these Terms and fails to cure same within thirty (30) days from its receipt of notice of such breach. Upon termination of these Terms for any reason and without limiting Axxana’s rights hereunder or under applicable law, Customer shall return or destroy the Software and the associated documentation to Axxana and, at Axxana’s request, Customer shall certify to Axxana that such actions have occurred. Sections 2, 3, 5, 6 and 8 through 13, and all accrued rights to payment, shall survive termination of these Terms.

9. Indemnification.

9.1 Axxana Indemnity. If an action is brought against Customer claiming that the Product (or any component thereof) infringe(s) a patent or copyright, Axxana will indemnify and defend Customer from such action at Axxana's expense (including costs and reasonable attorneys’ fees), provided, that: (i) Customer notifies Axxana promptly upon learning that the claim has been asserted; (ii) Axxana has sole control over the defense and any negotiation for its settlement or compromise; and (iii) Customer provides such assistance as Axxana reasonably requests.

9.2 Limited Remedy. In the event of a claim under Section 9.1 (Axxana Indemnity) above, Axxana may, at its sole option, and as applicable: (i) use commercially reasonable efforts to replace the infringing portion of the Product with a relevant product or service that fulfills substantially the same function; or (ii) procure for the applicable Customer the right to continue using the affected portion of the Product. If Axxana determines that it cannot, within a reasonable time, replace the infringing portion of the Product in accordance with clauses (i) above or procure the rights to continue using the affected portion of the Product in accordance with clauses (ii) above, then it may, at its option, terminate Customer’s rights under these Terms with respect to the Product, and: (i) refund to Customer the Product fees paid by Customer to Axxana with respect to such Product subject to a three (3) year straight-line depreciation schedule; and (ii) in the case of Support Services purchased directly from Axxana, provide a refund of any periodic fees paid to Axxana for any portion of such Support Services not yet received with respect to the affected portion of the Product. This Section 9 states Customer’s exclusive remedy, and Axxana's exclusive liability, for any claim of infringement.

9.3 Limitation. Axxana will have no obligation to Customer under this Section if any infringement is based upon: (i) a modification of any Product, or any portion thereof, not performed or provided by Axxana; (ii) the failure to promptly install a new release, correction, or update to the Product (or components thereof (“New Release”) provided by Axxana if prompt installation of such New Release would have avoided the infringement; (iii) the combination of the Product with any product not provided by Axxana if the Product would have avoided the breach, infringement but for such combination; (iv) the use or combination of the Product with any third party provider’s technology, data, materials, servers or other tangible equipment not provided by Axxana, if the Product would have avoided the breach, infringement but for such combination; (v) any repair, maintenance, or other services not provided by Axxana.

10. LIMITATION OF LIABILITY.

10.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL AXXANA OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, , LOSS OF PROFITS, BUSINESS, REVENUE, ANTICIPATED SAVINGS, BUSINESS INFORMATION, OR GOODWILL, WORK STOPPAGE, INACCURACY OF RESULTS, COMPUTER FAILURE, MALFUNCTION, FIRE, ELECTRICAL FAILURE OR SHORT CIRCUIT, OR DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE AXXANA PRODUCT, EVEN IF AXXANA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.2 THE ENTIRE LIABILITY OF AXXANA FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THESE TERMS SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY CUSTOMER TO AXXANA FOR THE PRODUCT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF AXXANA HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO CUSTOMER. THESE TERMS GIVE CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.

11. Government Use. Customers that are U.S. Government users will receive no greater than Restricted Rights as defined in FAR 52.227-14, FAR 52.227-19(c)(1-2) (Jun 1987) or DFAR 252.227-7013(c)(1)(ii) (Oct 1988), DFAR 252.221-7015(c) (May 1991), DFAR 252.227-7014, or DFAR 252.227-7018 as applicable in any Software. Government users will secure no greater than limited rights as defined in FAR 52.227-14, DFAR 252.227-7015, DFAR 252.227-7018, or DFAR 252.227-7013 as applicable in any technical data in or related to the Software.

12. Export Controls. Customer agrees to comply with all applicable export laws and restrictions and regulations of any government agency or authority, and agree that Customer will not export, or allow the export or re-export of the Product in violation of any such restrictions, laws or regulations. By installing or using the Product, Customer agrees to the foregoing and represent and warrant that Customer is not located in, under the control of, or a national or resident of any restricted country.

13. Governing Law and Legal Actions. Unless otherwise set forth in the applicable Order, these Terms, the Order, and if applicable, the Support Terms shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflicts of laws provisions thereof, and the sole jurisdiction and venue for actions related to the subject matter hereof shall be in the relevant state and federal courts located in New York County, New York. The United Nations Convention for the International Sale of Goods shall not apply, and is expressly excluded.

14. Miscellaneous. These Terms, the Order, and if applicable, the Support Terms represent the complete agreement concerning the Product between Customer and Axxana and supersede all prior agreements and representations between Customer and Axxana. The Terms may be amended only in by a written document executed by Customer and Axxana. If any provision of these Terms is held to be unenforceable for any reason, such provision shall be construed only to the extent necessary to make it enforceable and the remainder of these Terms shall remain valid and enforceable according to its terms. The failure of Axxana to act with respect to a breach of these Terms by Customer or others does not constitute a waiver and shall not limit the rights of Axxana with respect to such breach or any subsequent breaches. The prevailing party in any action to enforce these Terms will be entitled to recover its attorney’s fees and costs in connection with such action. These Terms are personal to Customer and may not be assigned or transferred for any reason whatsoever (by operation of law or otherwise) without the consent of Axxana and any action or conduct in violation of the foregoing shall be void and without effect. Axxana expressly reserves the right to assign these Terms and to delegate any of its obligations hereunder.

Exhibit A

Axxana Support Terms