This SOFTWARE LICENSE AGREEMENT (“Agreement”) is entered into by Teramis, Inc. (“Teramis”) and Licensee (individually a “Party” and collectively “Parties”).

Licensee means the individual or entity licensing the Software under this Agreement.  In exchange for the mutual promises and obligations set forth in this Agreement, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Parties agree as follows:
​
I.   Definitions

“Affiliate” shall mean a corporation, partnership, or other entity, either directly or indirectly controlling or controlled by a Party or under common control with the Party. The term “control” is used in this definition to mean the right, directly or indirectly, to exercise fifty percent (50%) or more of the voting rights attributable to the shares, shares of interest, or similar evidences of ownership of such controlled entity whose obligations are hereby guaranteed by either Party.

“Software” shall mean any computer programs and Upgrades made available by Teramis to Licensee.

“Confidential Information” means information disclosed by Teramis to Licensee and that should reasonably have been understood by the Licensee (because of legends or other markings, the circumstances of disclosure, or the nature of the information itself) to be proprietary and confidential to Teramis. Notwithstanding the foregoing, all Software (both object code and source code), customer information, product
documentation, specifications, Documentation, and information regarding future product offerings shall be deemed Confidential Information whether marked as such or not.

Confidential Information may include a combination of publicly known information provided the combination is not generally known to the public.
 
“Documentation” shall mean any technical manuals, training materials,
specifications, or other documentation associated with Software and made available to Licensee by Teramis.

“Intellectual Property” shall mean all patents and all patent applications (including, without limitation, originals, divisionals, continuations, continuations-in-part, non-provisionals, provisionals, reexaminations, extensions or reissues), design rights (whether registered or not and all applications for the foregoing), copyrights, database rights, topography rights, mask work rights, applications to register any of the aforementioned rights, trade secrets, rights in unpatented know-how, rights of confidence, and any other intellectual or industrial property rights of any nature whatsoever in any part of the world.

“Upgrades” shall mean all updates, upgrades, enhancements, or other modifications to computer programs made available by Teramis to Licensee.

“Use” or “Using” shall mean to install, access, exploit, download, activate, o otherwise use Software.
 
II.        Acceptance of Terms
 
            Section 2.0.  By clicking the “I Agree,” “Accept,” or similar button, downloading, installing, or otherwise Using the Software, Licensee agrees to be bound by the terms of the Agreement. If you are entering into this Agreement on behalf of an entity, you  represent that you have authority to bind that entity. If you do not have such authority or you do not agree to the terms of the Agreement, neither you nor the entity may Use the Software.
 
III.       License Grant
 
            Section 3.0.     Subject to payment of any applicable fees, Teramis grants Licensee a limited, non-exclusive, and non-transferable license to Use object code versions of the Software and the Documentation in conjunction with products provided by Teramis to Licensee.  Unless contrary to applicable law, there is no license to use the Software in conjunction with secondhand products or in conjunction with other products not specifically authorized by Teramis. 
 
            Section 3.1.     The Software may contain open source software and/or other third party software, subject to separate license terms made available to you in the licenses.csv file located within the software download package.
 
            Section 3.2.     Teramis retains all right, title, and interest in any Intellectual Property rights associated with or relating to the Software, including any Intellectual Property rights in any copies, improvements, derivative works, or modifications thereof.  Except for the license set forth in this Agreement, no other rights with respect to the Software or any related Intellectual Property are granted or implied.
 
            Section 3.3.     Unless explicitly authorized by Teramis in writing, Licensee agrees that it will not:

                        (a)        transfer, sublicense, or assign rights under this license to any other person or entity;
                        (b)        modify, adapt, or create derivative works of the Software or Documentation;
                        (c)        reverse engineer, decompile, decrypt, disassemble, access, or otherwise attempt to derive the source code for the Software;
                        (d)        Use Software that is licensed for a specific device, whether physical or virtual, on another device;
                        (e)        remove, modify, or conceal any product identification, copyright, proprietary, intellectual property notices, or other marks on or within the Software,
                        (f)        Utilize the Software that is licensed for specific Information Technology assets on other Information Technology assets.
 
            Section 3.4.     Teramis may in its sole discretion provide Upgrades to Licensee as such Upgrades become available.  Licensee has no right to use any Upgrade unless Teramis provides such Upgrade to Licensee and Licensee has a valid license to the original Software.  Nothing in this Agreement shall be construed as an obligation for Teramis to provide any Upgrade to Licensee.
​
            Section 3.5.     The Software collects the data about IP addresses and information about the devices that have an agent deployed on it from devices that have an agent deployed on it including, but not limited to, the following list:

• bios_uuid (EC0A7328-4517-B689-18C5-50EBF67EC890) cpu_count (20)

• cpu_id (BFABFBFF00865672)

• disk_serial (S2RBNB0J213V,0025_38B1_2141_8AFB.,0025_3854_2140_15EB.)

• mac_address (b2:c8:22:89:24:90)

• motherboard_serial (211295534989)

• os (Windows-10-10.0.19045-SP0)

• os_arch (64bit)

• os_machine (AMD64)

• os_node (DESKTOP-HOSTNAME)

• os_processor (Intel64 Family 6 Model 151 Stepping 2, GenuineIntel)

• os_version (10.0.19045)

• tamper_detection (true) External IP Address Internal IP Address

IV.       Confidentiality

            Section 4.0.     The Licensee shall limit access to Confidential Information to those of its employees (including contract employees, if any) having a need to know and provided that such employees (and contract employees) are bound by obligations of confidentiality consistent with this Agreement, (2) shall ensure that such employees (or contract employees) are aware that Confidential Information is subject to confidentiality and nonuse obligations, (3) shall ensure that any complete or partial reproduction or excerpt of the Confidential Information bears the restrictive markings on the original thereof, and (4) shall not disclose Confidential Information to any company, organization or individual that is not a Party to this Agreement.  The Licensee shall use the same degree of care to protect Confidential Information as it uses to protect its own information of similar importance, which shall be no less than a reasonable standard of care.

            Section 4.1.     The Licensee has no obligation to protect information that it can show by written records: (1) was in its possession with no restrictions on use or disclosure prior to its receipt from Teramis; or (2) is or becomes generally available to the public through no wrongful act of the Licensee; or (3) is or was independently developed by the Licensee; or (4) is rightfully received from a third party with no restrictions on use or disclosure.

            Section 4.2.     If the Licensee is requested or required to disclose Confidential Information in order to comply with any legal requirement (such as a subpoena) or pursuant to a judicial action or government regulation, it shall promptly notify Teramis in writing.  If requested by Teramis, the Licensee shall assist in obtaining a protective order or other similar remedy to limit or prevent such disclosure. If such order or other remedy is not obtained through no fault of the Licensee by the time such Confidential Information must be disclosed, the Licensee may make such disclosure without incurring any liability to Teramis.

V.        Warranties and Limitation of Liability

            Section 5.0      THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS.”  TERAMIS MAKES NO WARRANTIES OR REPRESENTATIONS RELATING TO THE SOFTWARE AND DOCUMENTATION, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND EXPRESSLY EXCLUDES THE WARRANTY OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY. TERAMIS DOES NOT WARRANT THAT THE LICENSED SOFTWARE AND DOCUMENTATION WILL SATISFY LICENSEE’S REQUIREMENTS, THAT THE LICENSED SOFTWARE AND DOCUMENTATION IS WITHOUT DEFECT OR ERROR, OR THAT OPERATION OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED.

            Section 5.1.     NEITHER PARTY SHALL BE LIABLE FOR any indirect damages or losses, or for any loss of profits, loss of revenue, loss of business, loss of data, loss of contracts or opportunity, whether direct or indirect, arising from any aspect of this Agreement, even if, in any such case, the party bringing the claim has advised the other of the possibility of those losses or if they were within the other party’s contemplation.

            Section 5.2.     Notwithstanding anything in this Agreement to the contrary, Teramis’ total cumulative liability under this contract shall be limited to the total amount paid, if any, by Licensee to Teramis in conjunction with the Software during any one calendar year. This limitation on liability shall supersede any and every other specific or general right of recovery or right of indemnification.

VI.      Term and Termination

            Section 6.0.     This Agreement and the license granted herein shall remain effective until terminated.  Upon termination, Licensee shall destroy all copies of Software and Documentation in its possession or control and certify such destruction to Teramis.

            Section 6.1.     Licensee may terminate the Agreement at any time by ceasing use of or destroying all copies of Software. This Agreement will immediately terminate if Licensee breaches its terms, or if Licensee fails to pay any portion of the applicable fees and Licensee fails to cure that payment breach within thirty (30) days of notice.

            Section 6.2.     Sections 3.2, 3.3 and Articles IV, V, VI, and VII shall survive termination of this Agreement.

            Article VII.    General Terms

            Section 7.0.     Each Party expressly acknowledges that the relationship between the Parties to this Agreement is that of independent contractors, and not agents, employees, or representatives of the other. This Agreement shall not be deemed to create a partnership, joint venture, or principal-and-agent, or employment relationship between Teramis and Licensee.

            Section 7.1.     Should any provision of this Agreement be declared illegal or unenforceable by any court of competent jurisdiction, and if such provision cannot be modified to be enforceable, such provision shall immediately become null and void, leaving the remainder of this Agreement in full force and effect.

            Section 7.2.     Licensee shall not directly or indirectly sell, transfer, assign, convey, pledge, encumber or otherwise dispose of the Agreement without the prior written consent of Teramis, which consent will not be unreasonably withheld.  Any assignment made without Teramis’ consent is void and ineffective.

            Section 7.3.     US Government End Users. The Software and Documentation are “commercial items,” as defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.)

2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with FAR

12.211 (Technical Data) and FAR 12.212 (Computer Software) and Defense Federal

Acquisition Regulation Supplement (“DFAR”) 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this Agreement may be incorporated, Government end users will acquire the Software and Documentation with only those rights set forth in this

Agreement.  Any license provisions that are inconsistent with federal procurement regulations are not enforceable against the U.S. Government.

            Section 7.4.    

            (a) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of laws principles.

            (b) Dispute Resolution. ANY REMAINING DISPUTE, CONTROVERSY, OR CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (AAA) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES.

            THE ARBITRATION SHALL TAKE PLACE IN HORRY COUNTY, SOUTH CAROLINA. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT EVIDENCES A TRANSACTION INVOLVING INTERSTATE COMMERCE AND THAT THE FEDERAL ARBITRATION ACT (9 U.S.C. § 1 ET SEQ.) SHALL GOVERN THE INTERPRETATION, ENFORCEMENT, AND PROCEEDINGS OF ARBITRATION HEREUNDER.

            THE AWARD RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.

           (d) Exceptions to Arbitration (Injunctive Relief & Small Claims).

                          1. Small Claims: Either party may bring an individual action in small claims court if the claim qualifies and remains in that court.

                         2. Injunctive Relief: NOTWITHSTANDING THE ARBITRATION AGREEMENT, TERAMIS RESERVES THE RIGHT TO SEEK INJUNCTIVE OR OTHER EQUITABLE RELIEF IN A COURT OF COMPETENT JURISDICTION TO PREVENT THE ACTUAL OR THREATENED INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF ITS COPYRIGHTS, TRADEMARKS, TRADE SECRETS, PATENTS, OR OTHER INTELLECTUAL PROPERTY RIGHTS.

            (e) Class Action Waiver. THE PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN THEIR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING.

            (f) Venue for Non-Arbitral Disputes. If for any reason a claim proceeds in court rather than in arbitration (including actions for injunctive relief), the parties hereby consent to the exclusive jurisdiction and venue of the state and federal courts located in Horry County, South Carolina, and waive any objection to such jurisdiction or venue.

            Section 7.5.     This Agreement constitutes the entire agreement and understanding of the Parties and supersedes all prior negotiations, understandings, and agreements, proposed or otherwise, written or oral, concerning the subject matter hereof.  Furthermore, no modification of this Agreement shall be binding unless in writing signed by each of the Parties hereto. For the purposes of this section, electronic acceptance (such as clicking “I Agree” to an updated version of this Agreement) shall constitute a binding, signed writing.

            Section 7.6.     The Parties agree that the electronic acceptance of this Agreement is legally binding and equivalent to a handwritten signature.