EMBEDDED SOFTWARE EVALUATION AGREEMENT
(“AGREEMENT”)

This evaluation agreement (“agreement”) is effective between Vivoka SAS (“Vivoka”), having a place of business at 11 rempart saint thiébaut, 57000 METZ, France, Incorporated Under the laws of France and you, (either an individual or a single entity).

VIVOKA and you are sometimes referred to individually as a “Party” and collectively as the “Parties”.

Considering the mutual covenants stated below, and for other good and valuable consideration, the receipt and sufficiency of which the Parties hereby acknowledge, the Parties agree as follows:

1. License and Restrictions of use. Subject to the terms of this Agreement and Appendix 1, Vivoka grants you a personal, revocable, non-exclusive, non-transferable right to use the Vivoka Software, identified in the product available in the current webpage, and every other item available, included the related documentation (collectively, the “Vivoka Software”) solely for non-production testing, demonstration, and evaluation purposes and not for commercial use.

The license granted is limited to the Terms specified in Section 9 below, and subject to the terms and conditions herein. You agree to provide Vivoka with reasonable feedback on the results of the evaluation, including recommendations for improvements and specific reasons for commercialization decisions with respect to the Vivoka Software.

2. Proprietary Rights. Vivoka and its licensors retain all right, title, and interest in and to the original and any copies of Vivoka Software and all Deliverables, and all patents, copyrights, trade secrets, trademarks, and other proprietary rights pertaining to the Vivoka Software. You will not: (a) use or rely on the use of Vivoka Software, for operational or production purposes; (b) make the Vivoka Software or Deliverables available to any third party; or (c) release or disclose the results of any benchmark testing of Vivoka Software or Deliverables.

3. Support and Maintenance. To facilitate the process of evaluating Software, subject to Vivoka personnel’s availability and to the contract between you and Vivoka, Vivoka may provide reasonable written support services through telephone or email to your designated personnel to provide such personnel with clarification of functions and features of the Vivoka Software. Support does not include any customization or professional services. Support is not an obligation for Vivoka.

4. Fees. The evaluation license to the Vivoka Software granted to you as described herein are provided at no cost to you. The provision of the associated support may be subject to invoicing, according to the agreement between the two parties.

5. Confidential Information. All information revealed or supplied by Vivoka to you, whether verbally or in writing, during the validity of the present Agreement will be deemed confidential information belonging to Vivoka.

You shall not disclose or use Vivoka’s Confidential Information (as defined below) except as provided in this Agreement while this Agreement is in effect and for three (3) years following termination or expiration of this Agreement, provided, however, that the foregoing restriction shall be perpetual as to all software provided by Vivoka hereunder until an exception described in this section applies. You may disclose Confidential Information to your employees who need to know and who are bound in writing by confidentiality terms no less restrictive than those contained herein. Notwithstanding the foregoing, Confidential Information may be disclosed if required by law, provided, however, that you shall notify Vivoka of such requirement immediately in writing and will reasonably cooperate with Vivoka in obtaining a protective or similar order.

“Confidential Information” means: (a) this Agreement, the Vivoka Software and related technology, algorithms, and information contained therein, including related trade secrets; and (b) any other information, including but not limited to product plans, designs, prices, non-published financial information, business opportunities, research, development, and know-how designated as confidential at the time of disclosure or that you should know is confidential.

“Confidential Information” does not include information that: (i) can be demonstrated by written records in your possession without restriction prior to disclosure by Vivoka; (ii) is or becomes publicly known or readily ascertainable without breach of this Agreement; (iii) is lawfully received by you from a third party without an obligation of confidentiality; (iv) is disclosed by Vivoka to a third party without an obligation of confidentiality on the part of the third party; (v) is independently developed by you; or (vi) is disclosed by you with Vivoka’s prior written consent. Upon Vivoka’s written request, you shall promptly return or destroy all of Vivoka’s Confidential Information.

By this Agreement Vivoka does not grant you any license, express or implied, or any right, title or interest in or to the Confidential Information, or any other rights. The Confidential Information disclosed shall remain Vivoka’s property, who is and shall be the owner of any and all technological or intellectual rights related to the said Confidential Information.

The Confidential Information shall not be used in any case (by you) to oppose or contest or challenge the validity of a patent or any other technological or intellectual property right, applied for or obtained by Vivoka.

6. Representations and Warranties. Vivoka represents and warrants that it is authorized to enter into this Agreement. You represent and warrant that: (a) all information you provided to Vivoka to license the Vivoka Software are correct and not misleading; and (b) you are authorized to enter into this Agreement.

7. Disclaimers. You acknowledge and agree that Vivoka is providing Vivoka Software, solely to permit you to evaluate the Vivoka Software and Deliverables. Consequently, you agree that it will take all precautions and safeguards necessary to protect its data and systems from loss or damage. THE Vivoka SOFTWARE AND ANY ASSOCIATED SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERRUPTED USE OR NON-INFRINGEMENT.

8. Term and Termination.

8.1 This Agreement shall be effective as of the date of its acceptance, and shall, unless terminated earlier pursuant to Section 9.2, remain in full force and effect for a period of 60 days from the effective date, at which time it shall automatically expire.

8.2 This Agreement may be terminated for causes as follows:

(i) by Vivoka, immediately upon written notice, if you violate Section 1;

(ii) by either party, immediately upon written notice, if the other party commits a material breach of this Agreement;

(iii) by either party, immediately upon written notice, if the other party ceases doing business as a result of dissolution, liquidation or other causes;

8.3 Upon the expiration or termination of this Agreement, (i) your rights under Section 1 shall terminate and (ii) you shall immediately (a) cease use of the Vivoka Software and Deliverables AND (b) destroy all copies of the Vivoka Software and Deliverables;

8.4 It is hereby agreed that the rights and obligations of the parties which for such purpose are explicitly identified or which by nature are meant to survive (including but not limited to Sections 2, 5, 7, 8 & 11) shall survive and continue after any termination or expiration and shall bind the parties, their successors, their assigns and their legal representatives.

9. General Terms.

9.1 Assignment. You shall not assign or otherwise transfer your rights or obligations under this Agreement, in whole or in part, to a third party unless such assignment is approved in writing by Vivoka. Notwithstanding the foregoing, you may assign your rights hereunder in their entirety pursuant to: (i) a merger with; (ii) the sale of substantially all of its assets to; or (iii) a consolidation with a third party; provided (i) you provide Vivoka with prompt written notice of such sale, merger or consolidation, (ii) the assignee is at least as financially sound as you, (iii) the assignee is not a direct competitor of Vivoka and (iv) the assignee agrees to be bound by all terms and conditions set forth by this Agreement. Vivoka shall be free to assign or otherwise transfer its rights and obligations under this Agreement, in whole or in part, to a third party, provided that Vivoka provides you with written notice of the assignment.

9.2 Force Majeure. Except for the obligation to make payments, nonperformance of either Party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, acts of God, governmental acts or orders or restrictions, acts of terrorism, war, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing Party and not due to its fault or negligence.

9.3 Governing Law. This Agreement shall be governed exclusively by and construed according to French law excluding the United Nations Convention on Contracts for the International Sale of Goods. The official text of the Agreement and any Addendum or any notices given on accounts or statements required hereby shall be in English.

The Parties shall use all reasonable efforts to amicably resolve any and all disputes between Vivoka and you. If the dispute cannot be resolved by mutual negotiations it shall be settled by arbitration according to the Rules of the International Chamber of Commerce (CCI) institution of Arbitration. The place of arbitration will be Metz, France. The arbitral Tribunal shall consist of one arbitrator.

Each party shall bear its own costs and charges related to the arbitration or judicial proceedings according to this section, except in the case where the final award or sentence condemns one party to pay such costs and/or reimburse them to the other party.

9.4 Partial Invalidity; Waiver. If any provision of this Agreement or the application thereof to any Party or circumstances shall be declared void, illegal or unenforceable, the remainder of this Agreement shall be valid and enforceable to the extent permitted by applicable law. In such event the Parties, with good faith, shall use their best efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by applicable law, most closely achieves the purposes intended under the invalid or unenforceable provision and maintains the economic balance of the contract, as it has been projected.Any deviation by either Party from the terms and conditions required under applicable laws, rules and regulations shall not be considered a breach of this Agreement. No failure of either Party to exercise any power or right given either Party hereunder or to insist upon strict compliance by either Party with its obligations hereunder, and no custom or practice of the Party at variance with the terms hereof shall constitute a waiver of either party's right to demand exact compliance with the terms of this Agreement.

9.5 Entire Agreement; Headings; Counterparts. This Agreement, all statements of work issued hereunder, and the exhibits attached hereto, constitute the entire agreement and understanding between the Parties with respect to the subject matter hereof, and supersede all prior agreements, arrangements and undertakings between the Parties. No addition to or modification of any provision of this Agreement shall be binding upon the Parties unless made by a written instrument signed by a duly authorized representative of each of the Parties. The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which shall be deemed to be an original instrument.

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