GENERAL TERMS AND CONDITIONS LICENSEE ACKNOWLEDGES AND AGREES THAT SYNCTHINK IS NOT A HEALTH CARE PROVIDER, AND THAT THE SYNCTHINK PLATFORM, WHILE PROVIDING RELEVANT DATA OF EYE MOVEMENT, DOES NOT DELIVER A DIAGNOSIS OF A PATIENT’S CONDITION, AND COULD POSSIBLY DELIVER INACCURATE DATA FROM TIME TO TIME. AS SUCH, LICENSEE AGREES AND REPRESENTS THAT IT AND ITS SELECTED PROVIDERS WILL USE ITS AND THEIR HEALTHCARE EXPERIENCE TO MAKE A DIAGNOSIS OF A PATIENT AND WILL NOT RELY SOLELY ON THE SYNCTHINK PLATFORM’S MEASUREMENT AND ANALYSIS OF EYE MOVEMENT IMPAIRMENT FOR A DIAGNOSIS OF A CONCUSSION. 1. Overview. SyncThink provides FDA-cleared eye-tracking technology to view, analyze and record eye tracking impairments. The entire solution, the “SyncThink Platform,” consists of the SyncThink® Software, SyncThink Hardware (which includes the Class II, proprietary EYE-SYNC® Device), SyncThink Cloud Service, and SyncThink Analytics. This Agreement governs Licensee’s use of the SyncThink Platform and includes the SyncThink Business Associate Agreement (“BAA”) attached hereto as Exhibit A and incorporated herein by reference. 2. Definitions. The following capitalized terms shall have the meaning assigned to them below: “EYE-SYNC® Device” or “Device” means SyncThink’s FDA Class II medical device that is an integrated, head-mounted eye-tracking virtual reality system. “HIPAA” means, collectively, Sections 261 through 264 of the federal Health Insurance Portability and Accountability Act of 1996, known as “the Administrative Simplification provisions,” which direct the Department of Health and Human Services to develop standards to protect the security, confidentiality and integrity of health information, the “Health Information Technology for Economic and Clinical Health” (“HITECH”) Act (Title XIII of Division A and Title IV of Division B of the American Recovery and Reinvestment Act of 2009 which modified and amended the Administrative Simplification provisions; and regulations modifying 45 CFR Parts 160 and 164 (the “HIPAA Rules”), as further amended by the Omnibus Final Rule (78 Fed. Reg. 5566), and such rules, amendments, and modifications thereto and/or promulgated thereunder. “Intended Use” means use of the EYE-SYNC Device by a Provider solely for recording, viewing and analyzing eye movements in support of identifying visual tracking impairment in human subjects. “Non-PHI Data” means PHI submitted to the SyncThink Platform which has been de-identified by SyncThink so as not to identify an individual who is the subject of the information, as provided in 45 CFR §164.514. “PHI” means protected health information, as defined in 45 CFR §160.103, which is received by SyncThink from Licensee or created, received, maintained, or transmitted by SyncThink on behalf of Licensee, specifically excluding Non-PHI Data. “Provider” means a health care provider selected by Licensee as an approved user of the EYE-SYNC Device for the Intended Use, which may include physicians, athletic trainers, nurse practitioners, nurses, and physician assistants delivering preventive, diagnostic, therapeutic, or rehabilitative healthcare and healthcare counseling, service, assessment, or procedures with respect to a physical or mental condition of an individual, who: (i) is adequately trained to use the EYE-SYNC Device, (ii) is licensed by the applicable governmental entity to deliver medical healthcare; and (iii) is an employee or under contract with the Licensee, or an employee of an entity contracted by the Licensee. “Regulatory Requirements” means the FDA mandated requirements that: (i) the EYE-SYNC Device be sold only to, or on the prescription or other order of, a practitioner licensed by state law to use such Class II device in the course of their professional practice, and (ii) that it be used in the possession of such practitioner or under practitioner's supervision directing the use of the Device. “Services” means any implementation or professional services identified on the Order Form. Services shall be provided under the terms of Exhibit B and any applicable Statement of Work (“SOW”). “SyncThink Analytics” means SyncThink’s proprietary analytics software made available on the SyncThink Cloud Service which enables the analysis of Licensee PHI data, both on an individual and an aggregated basis. “SyncThink Cloud Service” means the hosted service for the storage of data gathered from the SyncThink Hardware and analysis of data using the SyncThink Analytics. The SyncThink Cloud Service is hosted on the Microsoft Azure platform, which uses reasonable and appropriate safeguards to prevent inappropriate use and disclosure of PHI. Microsoft Azure’s security standards for its cloud service are aligned with FedRAMP (Federal Risk and Authorization Management Program) and the National Institute of Standards and Technology (NIST) Form 800-53, a security standard that maps to the “HIPAA Security Rule” promulgated under 45 CFR §160 and Subparts A and C of 45 CFR §164. “SyncThink Hardware” means, collectively, the EYE-SYNC Device, a Samsung Galaxy Tab S2 tablet and a Samsung Galaxy S7 cellular phone (or alternative tablet and/or mobile device provided by SyncThink), ordered by Licensee as set forth on the Order Form., “SyncThink Software” means SyncThink’s proprietary software provided with the SyncThink Hardware and updates and modifications thereof made available by SyncThink. 3. Term. The term of this Agreement shall be for the Subscription Period set forth on the Order Form, unless earlier terminated as provided herein. The Subscription Period shall be automatically extended for successive renewal periods of the same duration unless either party provides written notice of non-renewal to the other at least thirty (30) days before expiration of the then-current Subscription Period. Subscription Period renewals shall be at the fees set forth on the Order Form unless SyncThink has provided Licensee with written notice of fee increases at least forty-five (45) days prior to the end of the then-current Subscription Period. Additional licenses procured on a separate Order Form will co-terminate with other licenses purchased by Licensee in the original Order Form unless otherwise expressly set forth on the applicable Order Form. 4. License, Delivery & Restrictions. 4.1 License to the SyncThink Platform. Subject to the terms and conditions contained in this Agreement, SyncThink hereby grants to Licensee the following rights during the Subscription Period: (a) if the Order Form includes the SyncThink Platform, SyncThink grants to Licensee a non-exclusive, non-transferable right to use and access the SyncThink Cloud Service and SyncThink Analytics solely for use in conjunction with the SyncThink Hardware; (b) if the Order Form includes SyncThink Hardware, a non-exclusive, non-transferable, royalty-free license to use the SyncThink Hardware and SyncThink Software as provided by SyncThink solely for the Intended Use; and (c) a non-exclusive, non-transferable, royalty-free license to use and copy the documentation for the foregoing as made available by SyncThink (the “Documentation”). 4.2 Delivery. As soon as reasonably practicable after the Effective Date or as otherwise provided in an SOW (if applicable), SyncThink shall provide to Licensee the necessary passwords, security protocols, and/or network links to allow to access the SyncThink Cloud Service, with delivery to occur when such items have been provided by SyncThink and provisioning has been completed. 4.3 Restrictions. Licensee acknowledges and agrees that, as between Licensee and SyncThink, Licensee shall be responsible for all acts and omissions of any of the Providers or other users for whom it allows access to the SyncThink Cloud Service. Licensee shall not, and shall not allow any third party to: (i) reverse engineer, reverse assemble, decompile, or otherwise attempt to derive source code from, or to otherwise alter or modify the SyncThink Hardware or SyncThink Software; or (ii) remove, obscure or alter any notice of patent, copyright, or other proprietary right in or on the SyncThink Hardware and the associated Documentation. No rights are granted by SyncThink with respect to any source code. 5. Licensee Data and Usage. 5.1 Licensee Data. Licensee acknowledges and understands that use of the SyncThink Platform requires Licensee to provide PHI and related content and materials (“Licensee Data”) to SyncThink for purposes of providing the features and functions of the SyncThink Platform to Licensee, and Licensee hereby grants to SyncThink a non-exclusive, royalty-free license to use, copy, store, distribute, and publish Licensee Data solely for use by Licensee through the licenses granted in Section 4.1 of this Agreement and subject to the BAA. Licensee will be solely responsible for the accuracy and completeness of the Licensee Data as provided to SyncThink. Licensee shall be responsible for all changes to and/or deletions of Licensee Data and the security of all passwords and other access protocols required to access the SyncThink Cloud Service. Further, Licensee acknowledges that Licensee Data will be transferred to the United States of America where SyncThink maintains computing systems, resources and infrastructure necessary for the functioning and support of the SyncThink Platform and, consequently, for Licensee’s exercise of its rights under this Agreement. Those features and functions would not be available without such processing of Licensee Data in the United States of America. Pursuant to Article 49 of the GDPR, Licensee hereby expressly consents to the processing by, and transfer of, personal data to SyncThink in the United States of America for those purposes. Licensee represents and warrants that it shall have obtained necessary consents from Providers and patients for such data transfers prior to ingestion of related data into the SyncThink Platform. 5.2 Non-PHI Data. The Licensee agrees that SyncThink may “de-identify” Licensee’s PHI data, transforming the PHI data into Non-PHI Data. After SyncThink de-identifies PHI, the Non-PHI Data will be owned by SyncThink. Non-PHI Data is the sole property and Confidential Information of SyncThink and may be used and disclosed by SyncThink without restriction. 5.3 Personal Information. To the extent any Personnel (as defined below) provide any personal information to SyncThink, other than PHI, whether for access to the SyncThink Cloud Service or otherwise related to use or operation of the SyncThink Platform, such information shall be maintained by SyncThink according to its Privacy Policy. 6. Additional Obligations. 6.1 Licensee Must Have Necessary Internet Access. The EYE-SYNC Device is designed to transmit PHI to the SyncThink Cloud Service through a secure wireless Internet connection. Licensee is responsible for providing an Internet connection for that purpose, and agrees that such Internet connection shall meet the HIPAA and HITECH Security Rule standards. Further, Licensee is responsible for procuring and maintaining the necessary Internet connections necessary to use and access the SyncThink Cloud Service. SyncThink is not responsible for any compromise of data transmitted across computer networks or telecommunications facilities which are not owned or operated by SyncThink. 6.2 SyncThink Hardware. The SyncThink Hardware is provided under lease to Licensee during the Subscription Period. Licensee, at its sole cost and expense, shall maintain and repair the SyncThink Hardware so as to keep it in good condition and working order, reasonable wear and tear excepted; provided, however, that Licensee agrees that it will not load other software on the SyncThink Hardware, and will not perform any software updates to the phone or tablet from Samsung or the carrier, other than security updates to the tablet only. Licensee agrees that it will use the SyncThink Hardware only for the Intended Use, and that it shall keep the SyncThink Hardware free and clear of all security interests, claims, liens and encumbrances. Licensee shall provide necessary cooperation to SyncThink and SyncThink’s designated repair providers for the purpose of inspecting the SyncThink Hardware upon reasonable notice, at times reasonably convenient to Licensee, and for replacement of any SyncThink Hardware with warranty replacements, if applicable. TO THE EXTENT PERMITTED BY APPLICABLE LAW, LICENSEE WAIVES ANY AND ALL RIGHTS AND REMEDIES CONFERRED UPON LICENSEE BY ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE THAT LICENSEE MAY HAVE AGAINST SYNCTHINK. 6.3 Storage and Retrieval. The SyncThink Cloud Service will securely store the Licensee’s PHI data for access by the Licensee. The PHI data transmitted from the Licensee to the SyncThink Cloud Service will be retained for a minimum of six years and will be accessible for retrieval by the Licensee during the Subscription Period. Further, provided that SyncThink has not terminated this Agreement for Licensee’s breach or insolvency, Licensee’s PHI data may be retrieved by the Licensee after the expiration or termination of this License Agreement upon written request by the Licensee to SyncThink. 6.4 SyncThink Analytics. The SyncThink Analytics enables analysis of PHI data both on an individual and an aggregated basis, which is more advanced than the analytics of the SyncThink Software loaded on the SyncThink Hardware. The aggregated data will consist only of the PHI approved by the Licensee for use in aggregated study and analysis. No other PHI data provided by other Covered Entities (as defined in HIPAA) to SyncThink will be included in such aggregated analysis. SyncThink Analytics will be accessible to the Licensee as provided in the Documentation. 6.5 Use of the SyncThink Platform. Licensee shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the SyncThink Platform. Licensee agrees not to access the SyncThink Platform by any means other than through the interfaces that are provided by SyncThink. 6.6 Communications with Users. As part of the provision of the SyncThink Platform, SyncThink may need to communicate with Licensee and/or Providers and/or their respective personnel from time-to-time (collectively, Personnel”). Licensee hereby grants SyncThink, and shall obtain necessary consents from Providers to exercise, the limited right to communicate with such parties as may be necessary as part of the provision of the SyncThink Platform. 7. Fees & Payment. 7.1 Fees and Payment. Licensee shall pay the fees as specified in the Order Form and SOW (if applicable), within thirty (30) days following date of invoice unless otherwise set forth on the Order Form or SOW. Any undisputed late payments shall be subject to a service charge equal to 1.5% of the amount due (calculated on a monthly basis) or the maximum amount allowed by law, whichever is less. 7.2 Taxes. SyncThink fees do not include any local, state, federal or foreign taxes, levies or duties of any nature, including value-added, sales, use, or withholding taxes (“Taxes”). Licensee is responsible for paying all Taxes, excluding only taxes based on SyncThink's net income. If SyncThink has the legal obligation to pay or collect Taxes for which Licensee is responsible, the appropriate amount shall be invoiced to and paid by Licensee unless Licensee provides SyncThink with a valid tax exemption certificate authorized by the appropriate taxing authority. 8. Proprietary Rights; Publicity. 8.1 Ownership of Licensee Data; License from Licensee. As between SyncThink and Licensee, all title and intellectual property rights in and to the Licensee Data and is owned exclusively by Licensee. 8.2 SyncThink Intellectual Property Rights. Licensee agrees that all rights, title and interest in and to all intellectual property rights in the SyncThink Platform and Non-PHI Data are owned exclusively by SyncThink or its licensors. Except as provided in this Agreement, the license granted to Licensee does not convey any rights in the SyncThink Platform or Non-PHI Data, whether express or implied. 8.3 Publicity. Notwithstanding any other provision of this Agreement, SyncThink may make use of any ideas, concepts, know-how, methodologies, processes or techniques, whether or not patentable, learned, acquired or developed by SyncThink in the provision of the SyncThink Platform or performance of the Services for all purposes of its business provided that SyncThink does not breach any obligation of confidentiality set out in this Agreement. Licensee agrees to provide SyncThink with information regarding the Licensee’s experience of using the SyncThink Platform. The Licensee authorizes SyncThink to use the information for marketing purposes, subject to review and approval by the Licensee of any material identifying the Licensee, which consent shall not be unreasonably withheld. 9. Suspension/Termination. 9.1 Suspension. SyncThink reserves the right to suspend Licensee’s access to and/or use of the SyncThink Platform (i) if amounts are not paid when due, or (ii) if SyncThink reasonably concludes that Licensee has used the SyncThink Platform in violation of this Agreement or to engage in illegal activity, and/or that Licensee’s use of the SyncThink Platform is causing immediate, material and ongoing harm to SyncThink or others. In the extraordinary event that SyncThink suspends access to the SyncThink Platform, SyncThink will use commercially reasonable efforts to limit the suspension to the offending portion of the SyncThink Platform and resolve the issues causing the suspension of SyncThink Platform. Licensee agrees that SyncThink shall not be liable to Licensee or to any third party for any suspension of the SyncThink Platform pursuant to this Section. 9.2 Termination for Cause. Either party may terminate this Agreement and all Order Forms issued hereunder in the event the other party commits a material breach of any provision of this Agreement which is not cured within thirty (30) days following written notice from the non-breaching party. 9.3 Insolvency. Either party may, at its option, terminate this Agreement immediately upon written notice to the other party, in the event that (a) the other party becomes insolvent or unable to pay its debts when due; (b) the other party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (c) the other party discontinues its business; or (d) a receiver is appointed or there is an assignment for the benefit of such other party’s creditors. 9.4 Effect of Termination. Upon termination or expiration of this Agreement, (i) each party shall promptly return the Confidential Information of the other party or destroy the same and certify in writing that it has done so; and (ii) Licensee shall have no rights to continue use of the SyncThink Platform. If this Agreement is terminated by Licensee for any reason other than a termination by Licensee for cause, then SyncThink shall be entitled to all of the fees that would have otherwise been payable under this Agreement for the entire Subscription Period. If this Agreement is terminated as a result of SyncThink’s breach of this Agreement, then Licensee shall be entitled to a refund of the pro rata portion of any pre-paid SyncThink Platform license fees paid by Licensee to SyncThink under this Agreement for the terminated portion of the Subscription Period, payable following return of SyncThink Hardware. Further, upon expiration or termination of this Agreement, Licensee, at its own expense, shall immediately return the SyncThink Hardware to SyncThink in good repair and working order, to such location as SyncThink shall designate. If Licensee fails to return the SyncThink Hardware within ten (10) days following expiration or termination of this Agreement, then Licensee: (i) agrees to pay SyncThink the then-current price for the SyncThink Hardware upon receipt of invoice from SyncThink, provided that no rights for Licensee to use SyncThink Software shall survive expiration or termination of this Agreement. Payment obligations, ownership provisions, provisions which by their terms survive expiration or termination of this Agreement, and Sections 2, 4.3, 5.2, 6.3, 7, 8.1, 8.2, 9.4 and 10 through 14 shall survive expiration or termination of this Agreement. 10. Confidentiality. The BAA shall control in the event of any conflict between the following and the BAA. For purposes of this Agreement, “Confidential Information” shall include the terms of this Agreement, Licensee Data, each party’s proprietary technology, business processes and technical product information, designs, issues, all communication between the parties regarding the SyncThink Platform and any information that is clearly identified in writing at the time of disclosure as confidential. Notwithstanding the foregoing, Confidential Information shall not include information that: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the receiving party; or (4) the receiving party becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the receiving party. Each party agrees: (a) to keep confidential all Confidential Information; (b) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by Licensee; (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information) and to make Confidential Information available to authorized persons only on a “need to know” basis. Either party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is permitted by law or order of a court or other governmental authority or regulation. 11. Representations & Warranties. 11.1 Mutual Warranties. Each party covenants, represents and warrants that as of the Effective Date and throughout the term: (i) it has not, and shall not be, suspended, excluded from participation in, or sanctioned under, any federal or state health care program (including, without limitation, Medicare and Medicaid), convicted of any criminal offense related to the delivery of any medical or health care services or supplies, or related to the neglect or abuse of patients, or suspended, excluded or sanctioned under any other federal program; (ii) it shall maintain a current license to provide the product or services required to be provided by it hereunder; and (iii) it shall immediately notify the other party in the event of any failure to remain in compliance with the terms of this License Agreement. 11.2 Licensee Warranties. Licensee further represents and warrants that: (i) it has taken all necessary action and has obtained all necessary consents to provide the Licensee Data to SyncThink; and (ii) it shall comply with the Regulatory Requirements. 11.3 SyncThink Platform Warranty. SyncThink warrants during the Subscription Period that the SyncThink Platform will be free from material defect or error. SyncThink’s sole obligation and Licensee’s sole and exclusive remedy for any breach of the foregoing warranty shall be that SyncThink shall be required to use commercially reasonable efforts to modify the SyncThink Platform to achieve compliance with the foregoing warranty provided that Licensee provides written notice of such noncompliance within a reasonable time after discovery of the same. If SyncThink is unable to make such modifications within a reasonable time, either party shall be entitled to terminate the Agreement upon written notice. SyncThink shall have no obligation with respect to a warranty claim unless notified of such claim as provided above. The warranties set forth in this Section 11.3 are made to and for the benefit of Licensee only and shall only apply if the applicable portion of the SyncThink Platform has been utilized in accordance with this Agreement, the Documentation and applicable law. 11.4 Disclaimer of Warranties. THE WARRANTIES SET OUT IN THIS SECTION 11 AND IN SECTION 4 OF EXHIBIT B ARE IN LIEU OF ALL OTHER WARRANTIES, AND THERE ARE NO OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES OF ANY KIND WHATSOEVER, EITHER EXPRESS OR IMPLIED BY LAW (IN CONTRACT OR TORT) OR CUSTOM, INCLUDING, BUT NOT LIMITED TO, THOSE REGARDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, SYNCTHINK DOES NOT REPRESENT THAT LICENSEE’S USE OF THE SYNCTHINK PLATFORM AND / OR SYNCTHINK HARDWARE WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE, OR THAT THE SYNCTHINK PLATFORM WILL MEET LICENSEE’S REQUIREMENTS, OR THAT ALL ERRORS IN THE SYNCTHINK PLATFORM AND / OR SYNCTHINK HARDWARE WILL BE CORRECTED. 12. Limitations of Liability. EXCEPT FOR LICENSEE’S BREACH OF THE REGULATORY REQUIREMENTS, OR FOR INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE, NEITHER PARTY WILL BE LIABLE TO THE OTHER OR TO ANY OTHER THIRD PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OR LOSSES (IN CONTRACT OR TORT) IN CONNECTION WITH THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, LOST SAVINGS, LOST DATA OR SPECIAL DAMAGES, EVEN IF THE REMEDIES PROVIDED IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE AND EVEN IF SUCH PARTY HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. SYNCTHINK’S CUMULATIVE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, SHALL NOT EXCEED THE FEES PAID BY LICENSEE UNDER THE APPLICABLE ORDER IN THE PREVIOUS 12 MONTHS PRIOR TO THE DATE THE CLAIM AROSE. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages so parts of this limitation and exclusion may not apply. 13. Indemnification. 13.1 Infringement. SyncThink shall, at its own expense and subject to the limitations set forth in this Agreement, defend Licensee from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties (collectively “Claims”) and shall indemnify Licensee for any damages finally awarded or payable in settlement of such Claims (including, without limitation, reasonable attorneys’ fees incurred in defense and settlement thereof) (collectively, “Losses”) where the Claims allege that the SyncThink Hardware, SyncThink Platform or SyncThink Cloud Service (other than any Third Party Elements thereof), as used in accordance with this Agreement, infringe third party U.S. patents issued as of the Effective Date, or any trademarks or copyrights, or misappropriate trade secrets. Excluded from the foregoing indemnification obligations are Claims to the extent arising from (a) use of the SyncThink Hardware, SyncThink Platform, or SyncThink Cloud Service in violation of this Agreement or applicable law, (b) use of the SyncThink Hardware, SyncThink Platform or SyncThink Cloud Service after SyncThink notifies Licensee to discontinue use because of an infringement claim, or (c) use of the SyncThink Hardware, SyncThink Platform or SyncThink Cloud Service in combination with any software, application, data, or service made or provided by a party other than by SyncThink. If a Claim of infringement is brought or threatened, SyncThink shall, at its sole option and expense, use commercially reasonable efforts either (a) to procure a license that will protect Licensee against such Claim without cost to Licensee; (b) to modify or replace all or portions of the SyncThink Hardware, SyncThink Platform or SyncThink Cloud Service as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or (c) if (a) and (b) are not commercially feasible, terminate the Agreement and refund to the Licensee a pro-rata refund of the applicable amounts paid by Licensee for licenses to the SyncThink Platform for the applicable Subscription Period. The rights and remedies granted Licensee under this Section state SyncThink’s entire liability, and Licensee's exclusive remedy, with respect to any claim of infringement or misappropriation of the intellectual property rights of a third party. For purposes of this Agreement, “Third Party Elements” means any software code that: (a) is code provided by a third party to operate a particular device, such as operating system software; (b) contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software, shareware (e.g., Linux), or similar licensing or distribution models; and (c) is subject to any agreement with terms requiring that such software code be (1) disclosed or distributed in source code or object code form, (2) licensed for the purpose of making derivative works, and/or (3) redistributable. 13.2 Licensee’s Indemnity. Licensee shall, at its own expense defend SyncThink and its officers, directors, employees, agents, successors and assigns (“SyncThink Parties”) from and against any and all Claims and shall indemnify SyncThink Parties for any Losses attributable to such Claims, where the Claims (i) allege that the Licensee Data, or any use thereof, violates or infringes the intellectual property rights or other rights, violates applicable law, or has caused harm to a third party, or (ii) arise out of Licensee’s breach of Section 11.2 or the licenses and/or access rights granted herein. 13.3 Indemnification Procedures. In the event of a potential indemnity obligation under this Section, the indemnified party shall: (i) promptly notify the indemnifying party in writing of such Claim; (ii) allow the indemnifying party to have sole control of its defense and settlement; and (iii) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party’s cost and expense, with the indemnifying party in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The indemnification obligations under this Section 13 are expressly conditioned upon the indemnified party’s compliance with this Section 13.3 except that failure to notify the indemnifying party of such Claim shall not relieve that party of its obligations under this Section but such Claim shall be reduced to the extent of any damages attributable to such failure. 14. General Provisions. Each party agrees that before it or any employee, agent or representative of the party files a claim or suit with a federal or state agency or court or other public forum related to this Agreement, it shall provide thirty (30) days prior written notice to the other and that, within such thirty (30) day period (or longer, if extended by mutual desire of the parties), authorized representatives of the parties shall meet (or confer by telephone) at least once in a good faith attempt to resolve the perceived dispute. Neither party may assign or transfer this Agreement without written consent of the other, except that SyncThink may assign or transfer this Agreement without such consent to a related entity or to the successor of all or substantially all of its business or assets. This Agreement shall inure to benefit and bind the parties hereto and their permitted successors and assigns. There are no third-party beneficiaries to this Agreement. This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties, although SyncThink reserves the right to name Licensee as a user of the SyncThink Platform. This Agreement, including all exhibits and/or Order Forms, shall constitute the entire understanding between Licensee and SyncThink and is intended to be the final and entire expression of their agreement. The parties expressly disclaim any reliance on any and all prior discussions, emails, RFP’s, and/or agreements between the parties. There are no other verbal agreements, representations, warranties undertakings or other agreements between the parties. Under no circumstances will the terms, conditions or provisions of any purchase order, invoice or other administrative document issued by Licensee in connection to this Agreement be deemed to modify, alter or expand the rights, duties, or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of SyncThink to object to such terms, provisions, or conditions. Except as expressly set forth herein, this Agreement shall not be modified or amended except in a writing signed by the parties. This Agreement shall be governed in accordance with the laws of the State of California, excluding its conflicts of law rules. The provisions of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement. The parties consent and agree that any disputes, actions, claims or causes of action arising out of or in connection with this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in or for Santa Clara County, California or the City and County of San Francisco, California. If any provision is held by a court of competent jurisdiction to be contrary to law, such provision shall be eliminated or limited to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. A waiver of any breach under this Agreement should not constitute a waiver of any other breach or future breach. Neither party shall be liable for any loss or delay resulting from any force majeure event, including, but not limited to, acts of God, fire, natural disaster, terrorism, labor stoppage, internet service provider failures or delays, civil unrest, war or military hostilities, or criminal acts of third parties. All notices to a party shall be in writing to the appropriate party and shall be made either via email to the extent expressly permitted to be sent by email as set forth in this Agreement), conventional mail, overnight courier or facsimile. Notice sent via conventional mail, using registered mail, shall be deemed received four business days after mailing. Notice sent via email (to the extent expressly permitted) or facsimile or overnight courier shall be deemed received the second day after having been sent. This Agreement may be executed in counterparts and/or by facsimile, PDF or electronic signature and if so executed shall be equally binding as an original copy of this Agreement executed in ink by both parties.