SOFTWARE SANDBOX LICENSE AGREEMENT

This Software Sandbox License Agreement (this “Agreement”) is between you (“Customer”) and Passbase, Inc., a Delaware corporation with its principal place of business at 179 Franklin Street, 3rd Floor, New York, New York 10013 U.S.A. (“Company”). By clicking on the checkbox marked “I Accept and agree to be bound by the terms of this Agreement and Passbase’s Privacy Policy located at https://www.passbase.com/privacy, you have indicated that you understand this Agreement and accept all of its terms. If you are accepting the terms of this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the terms of this Agreement, and, in such event, “you” and “your” will refer to that company or other legal entity. If you do not accept all the terms of this Agreement, then you must not click the checkbox.

RECITALS

1. Company has developed a certain software product, as more fully described on Schedule A hereto (the “Software”).
2. Customer desires to test and evaluate the Software and provide feedback to Company to determine whether to enter into a standard end user license agreement with Company.
3. Company desires to have Customer test and evaluate the Software and provide feedback to Company for Customer to determine whether to enter into a standard end user license agreement with Company, subject to and in accordance with the terms of this Agreement.

 NOW, THEREFORE, the parties hereby agree as follows:

LICENSE.

1. Grant of License. Subject to Customer’s compliance with the terms and conditions of this Agreement, Company hereby grants to Customer a limited, nonexclusive, nontransferable, revocable license, during the term of this Agreement, to use the Software, in object code form, solely for the purposes of testing and evaluation, and not for general production use.
2. License Restrictions. Customer acknowledges that the Software contains trade secrets of Company and its licensors, and, in order to protect such trade secrets and other interests that Company and its licensors may have in the Software, Customer agrees not to reverse engineer, decompile, disassemble or modify the Software or authorize a third party to do any of the foregoing. Customer will not distribute sell, sublicense or otherwise transfer the Software or otherwise use the Software or any Confidential Information disclosed to create a competitive product or offering. Customer will not copy the Software, except as strictly necessary to use the Software in accordance with the terms of Section 1.1. Customer will reproduce all of Company’s and its licensors’ copyright notices and any other proprietary rights notices on all copies of the Software that Customer makes hereunder.
3. Limited Rights. Customer’s rights in the Software will be limited to those expressly granted in Section 1.1. Company and its licensors reserve all rights and licenses in and to the Software not expressly granted to Customer under this Agreement.
   

FEEDBACK.

Customer will: (a) test the Software and cooperate with Company in evaluating the Software; and (b) work with Company to identify and resolve any errors, problems or defects in the Software discovered by Customer or Company. In addition to the foregoing, upon the termination or expiration of this Agreement, Customer will provide Company with a final written report summarizing Customer’s feedback (the “Final Report”). All feedback, comments, and suggestions for improvements that Customer provides to Company hereunder, including the Final Report, are referred to collectively as “Customer Feedback”.

OWNERSHIP.

Customer acknowledges and agrees that all Customer Feedback will be the sole and exclusive property of Company. Customer hereby irrevocably transfers and assigns to Company and agrees to irrevocably assign and transfer to Company all of Customer's right, title, and interest in and to all Customer Feedback, including all worldwide patent rights (including patent applications and disclosures), copyright rights, trade secret rights, and other intellectual property rights (collectively, “Intellectual Property Rights”) therein. At Company’s request and expense, Customer will execute documents and take such further acts as Company may reasonably request to assist Company to acquire, perfect and maintain its Intellectual Property Rights and other legal protections for the Customer Feedback. Customer further acknowledges and agrees that, as between the parties, Company owns all right, title, and interest in and to the Software, including all Intellectual Property Rights therein, even if Company incorporates any Customer Feedback into subsequent versions of the Software. Customer will not earn or acquire any rights or licenses in the Software or in any Company Intellectual Property Rights on account of this Agreement or Customer's performance under this Agreement.

CONFIDENTIAL INFORMATION.

1. Definition. “Confidential Information” means: (a) the Software, and any features, results or output produced by, and other information relating to, the Software (including, without limitation, all Customer Feedback); and (b) any business or technical information of either party, including, but not limited to, any information relating to either party’s product plans, designs, costs, product prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how that (i) is designated by either party as “confidential” or “proprietary”; (ii) if orally disclosed, is reduced to writing by the disclosing party within thirty (30) days of such disclosure; or (iii) due to its nature or the circumstances of its disclosure, a person exercising reasonable business judgment would understand to be confidential or proprietary.
2. Exclusions. The obligations in Section 4.3 will not apply to the extent any information: (a) is or becomes generally known to the public through no fault or breach of this Agreement by the receiving party; (b) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving party without access to or use of any Confidential Information; or (d) is rightfully obtained by the receiving party from a third party without restriction on use or disclosure.
3. Restrictions. The receiving party will not use or disclose any Confidential Information, except as necessary for the performance of this Agreement. The receiving party will use all reasonable efforts to protect Confidential Information of the disclosing party from unauthorized use or disclosure, but in no event less than the efforts that it ordinarily uses with respect to its own proprietary information of a similar nature and importance. The receiving party may disclose Confidential Information of the disclosing party only to those of its employees who have a bona fide need to know such Confidential Information for the performance of this Agreement; provided, that each such employee first executes a written agreement (or is otherwise already bound by a written agreement) that contains use and nondisclosure restrictions at least as protective of the Confidential Information of the disclosing party as those set forth in this Agreement.
   

WARRANTY DISCLAIMER.

Customer acknowledges and agrees that the Software is being provided “AS IS.” COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.

LIMITATION ON LIABILITY.

IN NO EVENT WILL COMPANY BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE INSTALLATION OR USE OF OR INABILITY TO USE THE SOFTWARE OR FOR ANY ERROR OR DEFECT IN THE SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IN NO EVENT WILL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED $5,000. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

TERM AND TERMINATION.

1. Term. The term of this Agreement will be for a period of thirty (60) days, unless sooner terminated as provided below.
2. Termination. Either party may terminate this Agreement at any time, with or without cause, upon five (5) days' written notice to the other party. Company may terminate this Agreement immediately upon written notice to Customer in the event that Customer breaches any of its obligations under this Agreement or infringes or otherwise violates Company's Intellectual Property Rights.
3. Effect of Termination. Upon any termination or expiration of this Agreement: (a) the rights and licenses granted to Customer under this Agreement will automatically terminate; (b) Customer will promptly deliver to Company the Final Report; and (c) unless the parties otherwise agree in writing, within five (5) days after any such termination or expiration, Customer will, at its expense, return to Company all copies of the Software and any other Confidential Information in Customer's possession or control, and an officer of Customer will certify in writing to Company that it has complied with the foregoing.
4. Survival. The provisions of Sections 2, 3, 4, 5, 6, 7.3, 7.4 and 8 will survive any termination or expiration of this Agreement.

GENERAL PROVISIONS.

1. Assignment. Neither party may assign this Agreement or any of its rights or obligations hereunder, in whole or in part, by operation of law or otherwise, without the prior written consent of the other party. Any attempted assignment without such consent will be null and of no effect. Notwithstanding the foregoing, each party may assign this Agreement in the event of a merger, acquisition or change of control of the Company without the consent of the other party.
2. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York (excluding its body of law controlling conflicts of law). The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in New York County, and the parties hereby consent to the personal jurisdiction and venue therein.
3. Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such provision will be construed so as to be enforceable to the maximum extent permissible by law, and the remaining provisions of the Agreement will remain in full force and effect.
4. Waiver. The waiver of any breach or default will not constitute a waiver of any other right hereunder or of any subsequent breach or default.
5. Notices. All notices required or permitted under this Agreement will be in writing and delivered in person, by confirmed facsimile transmission, by overnight delivery service, or by registered or certified mail, postage prepaid with return receipt requested, and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth above or to such other address as may be specified by either party to the other in accordance with this Section.
6. Entire Agreement. This Agreement and the attached schedules constitute the entire and exclusive agreement between the parties pertaining to the subject matter hereof, and supersedes any and all prior agreements, communications, and understandings (both written and oral) regarding such subject matter. This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties.
7. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.

SCHEDULE A

Software

Passbase provides temporary use of non-downloadable cloud-based software for identity verification, user authentication, and secure storage of consumer identity information.