Contract analysis

Section 1.1 — Defined Terms As used in this Agreement, the following terms shall have the meanings ascribed to them below: "Affiliate" means, with respect to any Party, any entity directly or indirectly controlling, controlled by, or under common control with such Party, where "control" means the direct or indirect ownership of fifty percent (50%) or more of the outstanding voting securities of an entity or equivalen

Section 1.2 — Rules of Construction The following rules of construction shall apply to this Agreement: (a) The headings and titles of the Articles, Sections, and Subsections of this Agreement are inserted for convenience of reference only and shall not affect the meaning or interpretation of this Agreement. (b) Unless the context otherwise requires, words importing the singular number shall include the plural number

Section 2.1 — Grant of Exclusive License Subject to the terms and conditions of this Agreement and upon Licensee's payment of the Aggregate License Fee in accordance with Article IV, Licensor hereby grants to Licensee an exclusive (even as to Licensor, subject to Section 2.5), non-transferable (except as provided in Section 13.3), royalty-free (subject to payment of the Aggregate License Fee), worldwide license under

Section 2.2 — Sublicensing Licensee may sublicense the rights granted under Section 2.1 solely as follows: (a) Affiliates. Licensee may grant sublicenses to Affiliates of Licensee, provided that each such Affiliate agrees in writing, in a form reasonably acceptable to Licensor, to be bound by terms and conditions no less restrictive than those set forth in this Agreement, and Licensee shall remain primarily responsib

Section 2.3 — Field of Use The license granted pursuant to this Article II is for use in connection with all enterprise software-as-a-service (SaaS) applications and related cloud-management, hybrid-cloud infrastructure, multi-cloud orchestration, edge computing, and distributed computing products and services, without limitation as to industry vertical, market segment, geographic market, or end-customer classificati

Section 2.4 — Retained Rights of Licensor As between the Parties, Licensor retains all right, title, and interest in and to the Licensed Technology, including all intellectual property rights embodied therein, that are not expressly granted to Licensee under this Agreement. Nothing contained in this Agreement shall be construed to grant Licensee any rights to the Licensed Technology outside the Field of Use or outsid

Section 2.5 — Exclusivity Covenant During the Term, Licensor covenants and agrees that it shall not: (a) grant to any third party any license, sublicense, or other right under the Licensed Technology within the Field of Use, whether on an exclusive or non-exclusive basis; or (b) itself directly or indirectly use the Licensed Technology to develop, market, distribute, sell, offer for sale, or otherwise commercialize a

Section 2.6 — No Implied Licenses No rights or licenses with respect to the Licensed Technology or any other intellectual property of either Party are granted by implication, estoppel, exhaustion, or otherwise, except as expressly set forth in this Agreement. All rights not expressly granted herein are reserved.

ARTICLE III — TERM AND RENEWAL

Section 3.1 — Initial Term This Agreement shall commence on the Effective Date and shall continue in full force and effect for a period of five (5) years from the Effective Date, unless earlier terminated in accordance with Article VIII (the "Initial Term").

Section 3.2 — Renewal Upon expiration of the Initial Term, this Agreement shall automatically renew for successive two (2)-year periods (each, a "Renewal Term"), unless either Party provides written notice of non-renewal to the other Party at least one hundred eighty (180) days prior to the expiration of the then-current Term (whether the Initial Term or any Renewal Term). Any such Renewal Term shall be on the same t

Section 3.3 — Survival The following provisions shall survive the expiration or termination of this Agreement for any reason: Article I (Definitions), Section 6.1 (Licensor's Ownership), Section 6.2 (Licensee's Ownership), Section 6.3 (Improvements, solely with respect to ownership provisions), Article VII (Representations and Warranties, solely to the extent necessary to give effect to indemnification claims arising

Section 4.1 — Upfront License Fee In partial consideration for the license and other rights granted hereunder, Licensee shall pay to Licensor an upfront license fee in the amount of Three Million Two Hundred Thousand Dollars ($3,200,000) (the "Upfront License Fee"), representing forty percent (40%) of the Aggregate License Fee, within thirty (30) days following the Effective Date. The Upfront License Fee shall be pay

Section 4.2 — Annual Maintenance and Support Payments In further consideration for the license and other rights granted hereunder, Licensee shall pay to Licensor three (3) Annual Maintenance Payments, each in the amount of One Million Six Hundred Thousand Dollars ($1,600,000), totaling Four Million Eight Hundred Thousand Dollars ($4,800,000) in the aggregate, payable as follows: (a) The first Annual Maintenance Payme

Section 4.3 — No Royalties The license granted pursuant to this Agreement is fully paid-up within the Field of Use. No per-unit, per-seat, per-transaction, revenue-based, usage-based, or other ongoing royalty, milestone, or earn-out payments shall be due or payable by Licensee for the exercise of the rights granted herein, whether during the Initial Term, any Renewal Term, or otherwise.

Section 4.4 — Taxes All fees and payments set forth in this Agreement are exclusive of any and all applicable sales, use, value-added, goods and services, withholding, excise, transfer, or similar taxes, duties, tariffs, or governmental charges ("Taxes"). Licensee shall be responsible for the payment of all such Taxes, however designated, imposed on or with respect to the transactions contemplated by this Agreement,

Section 4.5 — Late Payments Any amount payable under this Agreement that is not paid when due shall bear interest from the date such amount became due until the date of actual payment at a rate equal to the lesser of (a) one and one-half percent (1.5%) per month (eighteen percent (18%) per annum), compounded monthly, or (b) the maximum rate permitted by applicable law. The accrual of interest under this Section 4.5 s

Section 4.6 — Non-Refundable Payments All payments made by Licensee to Licensor under this Agreement are non-refundable and non-creditable, except as expressly provided in Section 8.4 (with respect to a pro-rata refund upon termination for Licensor's uncured material breach) and Section 10.2 (with respect to a pro-rata refund in the event of certain remedial measures following an infringement claim). For the avoidanc

ARTICLE V — DELIVERY AND TECHNICAL SUPPORT

Section 5.1 — Delivery of Licensed Technology Within thirty (30) days following the Effective Date, Licensor shall deliver, or cause to be delivered, to Licensee the following materials in connection with the Licensed Technology: (a) complete and current source code and compilable object code for the DeltaSync Platform, in a format and on a medium reasonably acceptable to Licensee, including all build scripts, config

Section 5.2 — Source Code Escrow Within sixty (60) days following the Effective Date, Licensor shall establish and thereafter maintain, at Licensor's sole cost and expense, a source code escrow arrangement with an independent, nationally recognized escrow agent reasonably acceptable to both Parties. The source code escrow arrangement shall provide for the deposit of the complete and current source code for the DeltaS

Section 5.3 — Technical Support and Cooperation During the first twelve (12) months following the Effective Date (the "Support Period"), Licensor shall provide reasonable technical assistance and consultation to support Licensee's integration of the Licensed Technology into the Stratos Platform, including assistance with system architecture, API integration, performance tuning, debugging, and quality assurance testin

Section 5.4 — Training Within the first six (6) months following delivery of the Licensed Technology pursuant to Section 5.1, Licensor shall provide up to two (2) training sessions for Licensee's engineering and technical staff. Each training session shall be approximately two (2) business days in duration and shall cover the architecture, functionality, configuration, and integration methodology of the DeltaSync Pla

ARTICLE VI — INTELLECTUAL PROPERTY OWNERSHIP

Section 6.1 — Licensor's Ownership As between the Parties, Licensor retains and shall retain all right, title, and interest in and to the Licensed Technology, including all DeltaSync Patents, all Licensed Know-How, and all intellectual property rights embodied therein or associated therewith. Nothing in this Agreement shall be construed as an assignment or transfer of ownership of the Licensed Technology from Licenso

Section 6.2 — Licensee's Ownership As between the Parties, Licensee retains and shall retain all right, title, and interest in and to: (a) the Stratos Platform and all pre-existing intellectual property of Licensee, including all patents, copyrights, trademarks, trade secrets, know-how, and other proprietary rights owned or controlled by Licensee as of the Effective Date or developed by Licensee independently of the

Section 6.3 — Improvements The ownership of Improvements shall be determined as follows: (a) Licensor Improvements. Any Improvement made solely by employees, contractors, or agents of Licensor shall be solely owned by Licensor and shall automatically be deemed part of the Licensed Technology. Accordingly, such Licensor Improvements shall be included within the scope of the license granted to Licensee under Article II

Section 6.4 — Patent Prosecution and Maintenance Licensor shall, at its own cost and expense, diligently prosecute all pending DeltaSync Patent applications and maintain all issued DeltaSync Patents during the Term, including the timely payment of all maintenance fees, annuities, and other charges required to keep such patents in force. Licensor shall keep Licensee reasonably informed of the status of all patent pros

ARTICLE VII — REPRESENTATIONS AND WARRANTIES

Section 7.1 — Mutual Representations and Warranties Each Party hereby represents and warrants to the other Party, as of the Effective Date, that: (a) it is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware, and has the requisite corporate power and authority to own, lease, and operate its properties and to carry on its business as now being conducted; (b) it

Section 7.2 — Licensor's Representations and Warranties Licensor hereby represents and warrants to Licensee, as of the Effective Date, that: (a) Licensor is the sole and exclusive owner of the entire right, title, and interest in and to the Licensed Technology, free and clear of all liens, encumbrances, security interests, charges, options, claims, and restrictions of any kind, except as disclosed on Exhibit B attach

Section 7.3 — Licensee's Representations and Warranties Licensee hereby represents and warrants to Licensor, as of the Effective Date, that: (a) Licensee shall use the Licensed Technology solely within the scope of the license expressly granted pursuant to Article II and in compliance with all applicable laws and regulations; and (b) Licensee has, and throughout the Term will maintain, the technical capability, engin

Section 7.4 — Disclaimer EXCEPT AS EXPRESSLY SET FORTH IN THIS ARTICLE VII, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE LICENSED TECHNOLOGY, THE STRATOS PLATFORM, OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT. EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTI

Section 8.1 — Termination for Material Breach Either Party may terminate this Agreement upon sixty (60) days' prior written notice to the other Party if the other Party commits a material breach of any provision of this Agreement and fails to cure such breach within such sixty (60)-day notice period. The notice of termination shall specify in reasonable detail the nature of the material breach. For purposes of this S

Section 8.2 — Termination for Insolvency Either Party may terminate this Agreement immediately upon written notice to the other Party if the other Party: (a) files a voluntary petition in bankruptcy or is the subject of an involuntary petition in bankruptcy that is not dismissed within ninety (90) days of filing; (b) is adjudicated bankrupt or insolvent by a court of competent jurisdiction; (c) makes a general assign

Section 8.3 — Termination for Convenience by Licensee Licensee may terminate this Agreement at any time, with or without cause, upon ninety (90) days' prior written notice to Licensor. In the event of termination pursuant to this Section 8.3, all fees previously paid by Licensee to Licensor pursuant to Article IV shall be non-refundable, and any fees that have accrued but remain unpaid as of the effective date of ter

Section 8.4 — Effect of Termination Upon the expiration or termination of this Agreement for any reason: (a) all licenses and rights granted to Licensee under Article II shall terminate (except during the wind-down period provided in Section 8.5), and Licensee shall cease all use of the Licensed Technology, subject to Section 8.5; (b) each Party shall, within thirty (30) days following the effective date of terminati

Section 8.5 — Post-Termination Wind-Down Following the expiration or termination of this Agreement for any reason, Licensee shall have a twelve (12)-month wind-down period (the "Wind-Down Period"), commencing on the effective date of termination or expiration, during which Licensee may continue to use the Licensed Technology solely to the extent necessary to: (a) fulfill existing customer contracts and obligations th

Section 9.1 — Confidentiality Obligations The terms and conditions of the Mutual Nondisclosure Agreement dated June 19, 2023 (the "NDA"), entered into by and between the Parties, are hereby incorporated by reference and shall continue in full force and effect throughout the Term and for the applicable survival period set forth in Section 9.2. In addition to the obligations set forth in the NDA, each Party agrees to k

Section 9.2 — Duration The confidentiality obligations set forth in this Article IX and in the NDA shall survive the expiration or termination of this Agreement for a period of five (5) years from the effective date of such expiration or termination; provided, however, that with respect to any Confidential Information that constitutes a trade secret under applicable law, the confidentiality obligations shall continue

Section 10.1 — Indemnification by Licensor Licensor shall indemnify, defend, and hold harmless Licensee and its Affiliates, and their respective officers, directors, employees, agents, successors, and assigns (collectively, the "Licensee Indemnitees"), from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expense

Section 10.2 — Remedial Measures If any Licensed Technology, or any part thereof, becomes, or in Licensor's reasonable judgment is likely to become, the subject of a Third-Party Claim of infringement, misappropriation, or other violation of a third party's intellectual property rights, Licensor shall, at its sole option and expense, use commercially reasonable efforts to: (a) procure for Licensee the right to continu

Section 10.3 — Indemnification by Licensee Licensee shall indemnify, defend, and hold harmless Licensor and its Affiliates, and their respective officers, directors, employees, agents, successors, and assigns (collectively, the "Licensor Indemnitees"), from and against any and all Losses arising out of or resulting from any Third-Party Claim based upon or arising from: (a) Licensee's use of the Licensed Technology ou

Section 10.4 — Indemnification Cap Each Party's aggregate liability for all indemnification obligations under this Article X shall not exceed the Aggregate License Fee (Eight Million Dollars ($8,000,000)); provided, however, that the foregoing cap shall not apply to Losses arising from or relating to: (a) breaches of either Party's confidentiality obligations under Article IX; (b) willful misconduct, gross negligence

ARTICLE XI — LIMITATION OF LIABILITY

Section 11.1 — Consequential Damages Waiver EXCEPT WITH RESPECT TO (A) BREACHES OF EITHER PARTY'S CONFIDENTIALITY OBLIGATIONS UNDER ARTICLE IX, (B) EITHER PARTY'S INDEMNIFICATION OBLIGATIONS UNDER ARTICLE X, OR (C) EITHER PARTY'S WILLFUL MISCONDUCT, GROSS NEGLIGENCE, OR FRAUD, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITI

Section 11.2 — Aggregate Liability Cap EXCEPT WITH RESPECT TO EITHER PARTY'S INDEMNIFICATION OBLIGATIONS UNDER ARTICLE X (WHICH ARE SUBJECT TO THE SEPARATE CAP AND EXCEPTIONS SET FORTH IN SECTION 10.4), EACH PARTY'S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, SHALL NOT EXCEED THE AGGREGATE LICENSE FEE (EIGHT MILLION DOLLARS

ARTICLE XII — DISPUTE RESOLUTION

Section 12.1 — Escalation In the event of any dispute, controversy, or claim arising out of or relating to this Agreement, including any question regarding its existence, validity, interpretation, performance, breach, or termination (a "Dispute"), either Party may initiate the dispute resolution procedures set forth in this Article XII by providing written notice to the other Party describing the Dispute in reasonabl

Section 12.2 — Mediation If the Dispute is not resolved by the senior executives within thirty (30) days following receipt of the Dispute Notice (or such longer period as the Parties may agree in writing), either Party may, by written notice to the other Party, submit the Dispute to confidential, non-binding mediation before a single mediator mutually agreed upon by the Parties. If the Parties are unable to agree on

Section 12.3 — Litigation If the Dispute is not resolved through the escalation and mediation procedures set forth in Sections 12.1 and 12.2 within ninety (90) days following the date of the initial Dispute Notice (or such longer period as the Parties may agree in writing), either Party may initiate litigation in the state or federal courts located in the State of Delaware. Each Party hereby irrevocably and unconditi

Section 12.4 — Waiver of Jury Trial EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF THE OTHER PARTY HAS REPRESE

Section 13.1 — Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the conflict-of-laws principles thereof that would require or permit the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.