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AirStack Sandbox License

Deepwave Digital Software Development Kit License Agreement for AirStack Sandbox

THIS SOFTWARE DEVELOPMENT KIT LICENSE AGREEMENT FOR AIRSTACK SANDBOX (THE "AGREEMENT") IS PROVIDED BY DEEPWAVE DIGITAL INC., A DELAWARE CORPORATION WITH AN OFFICE AT 1429 WALNUT STREET, SUITE 1000, PHILADELPHIA, PA 19102 (“DEEPWAVE”) FOR THE USE OF THE AIRSTACK SANDBOX SOFTWARE DEVELOPMENT KIT (THE “APPLICATION”). THE APPLICATION IS LICENSED, NOT SOLD. READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THE APPLICATION.

“LICENSEE” MEANS THE INDIVIDUAL, CORPORATION, OR OTHER LEGAL ENTITY TO WHICH DEEPWAVE HAS ISSUED THE LICENSE DESCRIBED HEREIN. THE AGREEMENT REPRESENTS THE ENTIRE AGREEMENT BETWEEN THE LICENSEE AND DEEPWAVE CONCERNING YOUR RIGHTS TO INSTALL AND USE THE APPLICATION.

DOWNLOADING, COPYING, INSTALLING, OR USING THE APPLICATION CONSTITUTES YOUR ACCEPTANCE ON BEHALF OF LICENSEE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU MUST IMMEDIATELY STOP USING THE APPLICATION. AS USED HEREIN, THE “EFFECTIVE DATE” MEANS THE DATE ON WHICH LICENSEE IS GRANTED ACCESS TO THE APPLICATION.

  1. Definitions. Capitalized terms used in this Agreement and not otherwise defined herein shall have the definitions set forth below:

    (a) “Affiliate” means an entity which controls, is controlled by or is under common control with a party hereto; where “control” means that the controlling party directly or indirectly has the beneficial ownership of more than fifty percent of the controlled entity’s shares or ownership interest giving the power to direct or cause the direction of the general management of the controlled entity. An entity shall be an Affiliate only during the time when such control exists.

    (b) “Application” means the AirStack Sandbox firmware development kit, as well as new versions, upgrades, updates, and bug fixes thereto made available to Licensee.

    (c) “Authorized Site” means a single geographic location in which Licensee conducts business, with a radius of no more than five (5) miles, which location is identified in the applicable purchase order for the Application license.

    (d) “Bitstream” means a machine-executable, binary form of the Licensee Design that is used to program a Deepwave Device and is created through Licensee’s use of the Application.

    (e) “Deepwave Device” means any FPGA, PLD, SoC, SoM, configurable memory or other semiconductor devices that is a Deepwave OEM product or is incorporated into a Deepwave OEM product that is sold by Deepwave to Licensee directly or through one or more of Deepwave’s authorized distributors.

    (f) “Distributable Components” means those files supplied by Deepwave that are owned by Deepwave, contained within the Application, and are identified by Deepwave as either (a) an IP core which is designed for use in programming functionality onto a Deepwave Device (hereafter a "Core") or (b) a primitive, macro, example instantiation code, instantiation template, schematic or other written or graphic instructions that are specifically designed for utilizing functionality within the Application (hereafter a "Design Element"). Distributable Components may be supplied by Deepwave in either (y) source code form, such as a Core or Design Element provided in VHDL or Verilog form (hereafter "Modifiable Form"), or (z) a format other than source code, such as a Core or Design Element provided in netlist form or encrypted netlist form.

    (g) “Documentation” means all user guides, manuals, and support material relating to the use of the Application that are provided by Deepwave to Licensee, as may be updated from time to time.

    (h) “Error” means a repeatable failure of the Application to substantially conform to the Documentation as published by Deepwave.

    (i) “Intellectual Property Rights” means all worldwide patent, trademark, copyright, trade secret, and other intellectual property and proprietary rights.

    (j) “Licensee Design” means the Licensee-provided code that Licensee uses in connection with the Application to produce the Bitstream.

    (k) “Research Purposes” means the use of the Application by Licensee’s employees and contractors in furtherance of Licensee’s research and development efforts.

    (l) “Third Party” means any person or legal entity that is not Deepwave or the Licensee.

2. License Grants. Subject to the terms of this Agreement, Deepwave hereby grants to Licensee the following nonexclusive, nontransferable, revocable license (the "License")

2.1. Use Rights: Licensee may install and use the Application on its computer hardware solely to create and test Licensee Designs to be programmed only on a Deepwave Device as a Bitstream, but in all cases solely for Research Purposes. No right is granted to use the Application to create and test Licensee Designs for non-Deepwave Devices; and

2.2. Modification Rights: For Distributable Components supplied by Deepwave in Modifiable Form, Licensee may modify such Distributable components, provided that such modification is limited to enabling such Distributable Components to program only a Deepwave Device.

2.3. Distribution Rights: Licensee may reproduce and distribute the Distributable Components, but only as part of a Bitstream, and solely to program a Deepwave Device for Research Purposes. Licensee may allow any of its Affiliates to exercise the rights granted to Licensee above; provided however, that Licensee shall be liable for any failure of Affiliates to the abide by the terms and conditions of this Agreement as if such failure was the failure of Licensee. Licensee is solely responsible for ensuring its Affiliates are authorized to use the Xilinx Materials (as defined in Section 3.2).

2.4. Other Rights: Licensee may copy, internally distribute, and internally publish a reasonable number of copies of the Documentation, solely in connection with Licensee’s use of the Application.

3. Third Party Software.

3.1. The Application may include Third Party software licensed to Licensee under these terms or under separate terms of such Third Party licensors that are accessible within the Application in a separate file.

3.2. In addition, Licensee acknowledges and agrees that the Application includes or requires the use of certain files, programs, hardware or other materials owned by Xilinx, Inc. (including JESD Xilinx Module and Xilinx Vivado) (the “Xilinx Materials”), and Licensee’s use of the Application requires and is expressly conditioned on Licensee obtaining, maintaining and complying with license agreements for the Xilinx Materials (the “Xilinx Licenses”).

4. License Restrictions. The License granted is subject to the express restrictions set forth below.

4.1. Licensee shall not, and shall not cause or permit any other individual or entity to, directly or indirectly:

4.1.1. use the Application for any purpose not otherwise explicitly permitted in the Section 2;

4.1.2. disassemble, decompile, or reverse engineer the Application, or attempt to gain access to its method of operation or source code;

4.1.3. use, test, or reverse engineer the Application in order to make or distribute an application or software that performs the same or similar functions as Application;

4.1.4. sell, license, sublicense, provide access, publish, display, distribute, disseminate, assign, or otherwise transfer to a Third Party the Application or any copy thereof;

4.1.5. alter, remove, or obscure any copyright, trade secret, patent, trademark, logo, proprietary and/or other legal notices or license files on or in copies of the Application;

4.1.6. copy, distribute, or publish the Documentation, except as expressly authorized in Section 2;

4.1.7. disable, circumvent, or workaround any limitation of the Application’s ability to function beyond the functionality set forth in the Documentation;

4.1.8. fail to possess and abide by the terms of any license terms for any Third-Party software included in or requires to use the Application;

4.1.9. use Bitstreams to program any device other than a Deepwave Device.

4.1.10. publish or disclose the results of any benchmarking of the Application or Bitstream, or use such results for competing development activities.

4.1.11. use the Application or any Bitstream for any purpose other than Research Purposes, including, creating or testing Licensee Designs or distributing Bitstreams for any commercial purpose. For clarity, any right to create and test Licensee Designs or distribute Bitstreams for a commercial purpose requires a separate written agreement with Deepwave.

5. Ownership.

5.1. The Application is licensed and not sold. As between Licensee and Deepwave, Deepwave retains sole and complete ownership of all right, title, and interest in the Application, including all Intellectual Property Rights therein. Licensee shall have no right, title, or interest in the Application, except as expressly set forth in this Agreement and to the extent Licensee acquires any right, title or interest in the Application, it hereby irrevocably assigns and transfer it to Deepwave. Nothing in this Agreement will be construed to transfer or assign any Intellectual Property Rights of either party to the other party.

5.2. Licensee retains ownership of all Intellectual Property Rights in the Licensee Design. Additionally, as between Licensee and Deepwave, except for the Application (including any Distributable Components), Licensee shall own all right, title, and interest in the Bitstream. Licensee acknowledges that Third Parties, including Xilinx, Inc., may have ownership rights in certain portions of the Bitstream and Licensee’ use of the Bitstream is subject to agreements with those Third Parties (in addition to the terms of this Agreement).

6. Software Maintenance and Support. For one year from the date of order entry Deepwave will provide Licensee with online technical assistance, as well as any upgrades, updates, bug fixes that it makes available to its other licensees (collectively, “Support and Maintenance”). Upon the expiration of the support period, and subject to Deepwave's product discontinuance policies, any such Support and Maintenance must be purchased separately on an annual subscription basis by Licensee.

If Licensee’s Support and Maintenance subscription has expired without being renewed, Licensee may reinstate it by paying the fees described below. Reinstating will provide access to all Support and Maintenance services available at the time of reinstatement, including the latest versions of Application. The fees for reinstating a lapsed Support and Maintenance subscription will include fees for annual renewal, including any applicable back Support and Maintenance fees for the lapsed period, and reinstatement fees if applicable. A reinstatement fee is applied to a Support and Maintenance subscription that has lapsed.

LICENSEE ACKNOWLEDGES AND AGREES THAT EXCEPT FOR THE RIGHT TO RECEIVE A REFUND OF LICENSE FEES PAID IN LIMITED CIRCUMSTANCES (AS OUTLINED IN SECTION 13), LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR ANY DEFECT, ERROR, MALFUNCTION IN THE APPLICATION SHALL BE TO RECEIVE SUPPORT AND MAINTENANCE FROM DEEPWAVE PURSUANT TO AN ACTIVE AND VALID SUPPORT AND MAINTENANCE SUBSCRIPTION.

7. Term and Termination.

7.1. Term. This Agreement shall continue until the earlier of termination by Deepwave, termination by Licensee or automatic termination, as provided below.

7.2. Termination by Licensee. Licensee may terminate the License at any time, for any reason, by destroying the Application and all copies and derivative works and providing notice to Deepwave of same. Licensee shall not be entitled to any refund if License is terminated by Licensee.

7.3. Termination by Deepwave. Deepwave may terminate this Agreement for material breach by Licensee, provided that Deepwave has given written notice to Licensee of such breach and Licensee fails to cure such breach within thirty (30) days thereof; provided, however, in the event of a breach of confidentiality under Section 16 whereby unauthorized disclosure and/or dissemination by electronic or other means is likely to cause undue harm to Deepwave, then Deepwave may, at its discretion, immediately terminate this Agreement and seek other appropriate equitable and legal remedies as deemed necessary to protect its interests hereunder.

If Licensee or any of its affiliates commences or participates in any legal proceeding against Deepwave challenging or asserting any Intellectual Property Rights in or against any of the Applications, then Deepwave may, without waiving any other legal rights or remedies available to it, immediately terminate this Agreement and the License. In the event Deepwave terminates this Agreement, Licensee must immediately terminate usage of the Application.

7.4. Automatic Termination. This Agreement shall automatically in the event Licensee loses its right to use any Xilinx Materials, including termination or expiration of any of the Xilinx Licenses.

7.5. Additional Termination Rights. In the event that Deepwave loses its right to use any Third Party materials contained in the Application or reasonably believes that the Application may infringe, violate or misappropriate the Intellectual Property Rights of a Third Party, then Deepwave may, in its sole discretion, immediately terminate this Agreement for its convenience.

7.6. Effect of Termination. Upon termination of this Agreement the licenses and rights granted by Deepwave hereunder will cease, and Licensee shall destroy the Application and all Bitstreams, including all copies and derivative works, and all related documentation and certify such destruction in writing to Deepwave.

7.7. Survival. The terms of this Agreement which by their nature are intended to survive termination of this Agreement shall survive, including Sections 5, 7.6, 12, 13, 13.3, 15, 16, 17, 18.

8. Publicity. Licensee may not, without Deepwave’s prior written consent use Deepwave's name, trademarks, service marks, logos, or other designs of Deepwave or its licensors in any advertising, promotional literature or any other material, whether in written, electronic, or other form, that is distributed to any Third Party or made publicly available.

9. Federal Acquisition. This provision applies to all acquisitions of the Application and Documentation by, for, or through the federal government of the United States. By accepting delivery of the Application or Documentation, the government hereby agrees that the Application and Documentation qualifies as “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used or defined in FAR 12.212, DFARS Part 227.72, and DFARS 252.227-7014. The Application and Documentation were developed solely at the expense of Deepwave. Accordingly, the terms and conditions of this Agreement and only those rights specified in this Agreement, shall pertain to and govern the use, modification, reproduction, release, performance, display, and disclosure of the Application and Documentation by the federal government (or other entity acquiring for or through the federal government) and shall supersede any conflicting contractual terms or conditions. If this License fails to meet the government's needs or is inconsistent in any respect with federal procurement law, the government agrees to return the Application and Documentation, unused, to Deepwave.

10. Payment and Taxes.

10.1. Payment. For purchases made through Deepwave's authorized distributors, this Section 10 shall not apply. Deepwave shall invoice Licensee for the license fee identified by Deepwave in connection with this Agreement and any amounts set forth in a purchase order issued by Licensee for support renewals. Licensee shall pay such invoices in full thirty (30) days after the invoice date, without any deduction, counterclaim or offset. Overdue amounts shall accrue interest at the rate of one and one-half percent (1.5%) per month, or at the highest legal interest rate, if less. Notwithstanding the foregoing, Deepwave may require pre-payment or other security, depending on a credit review by Deepwave of Licensee’s payment history or changes in financial condition. If Licensee’s procedures require that an invoice be submitted against a purchase order before payment can be made, Licensee will be responsible for issuing such purchase order thirty (30) days before the payment due date.

10.2. Taxes and Duties. Absent appropriate exemption certificates or other conclusive proof of tax-exempt status, Licensee shall pay all applicable sales, use, excise, value-added, and other taxes, duties, levies, assessments, and governmental charges payable in connection with this Agreement, excluding taxes based on Deepwave's income.

11. Assignment. Licensee shall not assign this Agreement or transfer any of the rights or obligations under this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of Deepwave. Any merger, acquisition, reorganization, change of control, or the like, involving Licensee shall be deemed an assignment in violation of the foregoing. Subject to the foregoing, this Agreement will be for the benefit of Deepwave and its successors and assigns and will be binding on Licensee’s permitted assignees.

12. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, DEEPWAVE AND ITS AFFILIATES SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE APPLICATION OR THIS AGREEMENT (INCLUDING WITHOUT LIMITATION ANY LOST PROFITS OR OTHER DAMAGES ARISING FROM LOSS OF USE, LOSS OF DATA, LOSS OF GOODWILL OR THE COST OF PROCURING SUBSTITUTE PRODUCTS), WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER CAUSE OF ACTION OR THEORY OF LIABILITY. IN NO EVENT WILL DEEPWAVE AND ITS AFFILIATES’ TOTAL CUMULATIVE LIABILITY FOR ANY CLAIM UNDER OR ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID BY LICENSEE TO DEEPWAVE FOR THE LICENSE AND ANY RELATED SUPPORT AND MAINTENANCE IN THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM. THE PARTIES AGREE THAT THIS SECTION 12 (LIMITATION OF LIABILITY) REPRESENTS AN ALLOCATION OF RISK WHICH THE PARTIES CONSIDER REASONABLE.

13. Representations and Warranties.

13.1. Mutual Representations and Warranties. Each of Deepwave and Licensee represents and warrants to the other that (a) it has the authority to enter into this Agreement and (b) its performance under this Agreement and the rights of the other party to perform under this Agreement do not violate or conflict with any other contract to which it is a party or any other obligation.

13.2. Limited Performance Warranty. Deepwave warrants that if Licensee reports an Error to Deepwave in writing within a period of one (1) year from the Effective Date (the “Warranty Period”), Deepwave shall remedy the defective Application by (a) if Licensee has a valid and current Support and Maintenance subscription, Deepwave shall provide Support and Maintenance or (b) if Licensee does not have a valid Support and Maintenance Subscription, terminating the license and providing a pro rata refund of any fees paid for the License.

13.3. By Licensee. Licensee represents and warrants to Deepwave that it has and shall maintain through the term of this Agreement valid Xilinx Licenses and that it is permitted to use all Xilinx Materials at the Authorized Site.

14. Disclaimers.

14.1. EXCEPT FOR WARRANTIES EXPRESSLY SET FORTH IN SECTION 13, THE APPLICATION AND ALL DOCUMENTATION ARE DELIVERED "AS IS" AND DEEPWAVE MAKES NO ADDITIONAL EXPRESS OR IMPLIED WARRANTIES. DEEPWAVE HEREBY EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, OR OTHER TERMS OF ANY KIND OR NATURE CONCERNING THE APPLICATIONS AND DOCUMENTATION (INCLUDING, WITHOUT LIMITATION, ANY WITH REGARD TO INFRINGEMENT, MERCHANTABILITY, QUALITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE OR LICENSEE'S PURPOSE OR OPERABILITY WITH OTHER FUNCTIONALITY, SOFTWARE OR PROTOCOLS). DEEPWAVE ALSO EXPRESSLY DISCLAIMS ANY WARRANTIES THAT MAY BE IMPLIED FROM USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN SECTION 13 OF THIS AGREEMENT, THE APPLICATIONS AND DOCUMENTATION ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK OF SATISFACTORY QUALITY, PERFORMANCE, AND ACCURACY IS WITH LICENSEE. DEEPWAVE DOES NOT WARRANT THAT THE APPLICATIONS AND DOCUMENTATION WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. LICENSEE ACCEPTS RESPONSIBILITY FOR ITS USE OF THE APPLICATION AND THE RESULTS OBTAINED FROM ITS USE.

14.2. LICENSEE ACKNOWLEDGES THAT USE OF THE APPLICATION IN COMBINATION WITH OTHER FUNCTIONALITY, SOFTWARE OR PROTOCOLS MAY REQUIRE LICENSES FROM THIRD PARTIES AND LICENSEE ACCEPTS SOLE RESPONSIBILITY FOR OBTAINING SUCH LICENSES.

14.3. THE APPLICATION IS NOT DESIGNED OR INTENDED TO BE FAIL-SAFE, OR FOR USE IN ANY SYSTEM, PRODUCT OR SERVICE REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS SYSTEMS, PRODUCTS, AND SERVICES RELATED TO LIFE-SUPPORT OR SAFETY DEVICES OR SYSTEMS, CLASS III MEDICAL DEVICES, NUCLEAR FACILITIES, DEPLOYMENT OF AIRBAGS, CONTROL OF VEHICLE OR AIRCRAFT (UNLESS THERE IS A FAIL-SAFE OR REDUNDANCY FEATURE WHICH DOES NOT INCLUDE USE OF THE DEEPWAVE DEVICE TO IMPLEMENT THE REDUNDANCY AND A WARNING SIGNAL UPON FAILURE TO THE OPERATOR), OR ANY OTHER APPLICATIONS THAT COULD LEAD TO DEATH, PERSONAL INJURY OR SEVERE PROPERTY OR ENVIRONMENTAL DAMAGE (INDIVIDUALLY AND COLLECTIVELY, “CRITICAL APPLICATIONS”). LICENSEE AGREES, PRIOR TO USING OR DISTRIBUTING ANY SYSTEMS, PRODUCTS OR SERVICES THAT INCORPORATE THE APPLICATION, TO THOROUGHLY TEST THE SAME FOR SAFETY PURPOSES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSEE ASSUMES THE SOLE RISK AND LIABILITY OF ANY USE OF THE LICENSED MATERIALS IN CRITICAL APPLICATIONS.

15. Indemnification.

15.1. By Licensee. Licensee will defend, indemnify, and hold harmless Deepwave and its licensors, and their respective officers, directors, employees, and agents from and against any Third Party losses, judgments, damages, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of any Third Party claim or demand based on or arising from, out of or in connection with (i) Licensee’s breach of this Agreement; (ii) the use of the Application and Documentation; or (iii) any allegation that a Licensee Design or operation of a Deepwave Device in accordance with a Licensee Design violates, infringes or misappropriates a Third Party’s Intellectual Property Rights.

15.2. Indemnification Procedure. Deepwave shall (i) promptly give written notice of the claim to Licensee (provided that any failure to promptly give notice shall only relieve Licensee of its indemnification obligation to the extent it is prejudiced thereby); (ii) give Licensee sole control of the defense and settlement of the claim (provided that Licensee must obtain Deepwave’s prior written consent to any settlement that does not unconditionally release Deepwave of all liability or that contains obligations other than the payment of sums covered by Licensee’s indemnification obligation); (iii) provide Licensee all reasonable information and assistance, at Licensee’s reasonable expense; and (iv) not compromise or settle such claim without Licensee prior written permission, which shall not be unreasonably withheld, delayed or conditioned.

16. Confidentiality.

16.1. Duties. Except as otherwise expressly permitted in Section 2, Licensee shall (a) maintain the confidentiality of the Application as the proprietary trade secrets of Deepwave; and (b) not make the Application available in any form to any person other than to its employees who are working at the Authorized Site, who have a genuine “need to know” for purposes authorized by this Agreement, and who are bound by obligations of confidentiality no less protective of Deepwave (and its licensors, if any) than those contained herein. Licensee represents to Deepwave that it maintains a system of confidentiality consistent with commonly accepted practices to protect its own confidential business information, including written agreements with employees, and that the Application will be protected by such a system to the same extent, but in no event with less than reasonable care. Licensee agrees that a breach of this Agreement may result in irreparable and continuing damage to Deepwave for which there may be no adequate remedy at law, and Deepwave shall be entitled to seek injunctive relief and/or a decree for specific performance, and such other relief (including monetary damages) as may be proper.

16.2. Exceptions. The obligations of confidentiality under this Agreement shall not apply to information that: (a) is already known to Licensee at the time of disclosure without obligation of confidentiality; (b) is or becomes publicly known through no wrongful act or omission of Licensee; (c) is rightfully received by Licensee from a Third Party without obligation of confidentiality; (d) is approved for release by written authorization of Deepwave; or (e) was developed by Licensee independently and without the use or benefit of the Application.

17. Recommendations. From time to time, Licensee may communicate to Deepwave recommendations or suggestions of new software functionality or ways to improve or change the Application (collectively, “Recommendations”). To the extent not otherwise owned by Deepwave pursuant to this Agreement, Licensee hereby grants to Deepwave a worldwide, perpetual, irrevocable, sublicensable, transferable, fully paid up, royalty free license to use the Recommendations for any purpose.

18. General.

18.1 Governing Law; Jurisdiction. This Agreement shall be interpreted, enforced, and construed and governed in all respects by the laws of the State of Delaware, United States of America, without regard to its conflicts of law provisions. Both parties consent to the exclusive jurisdiction of the federal and state courts located in the State of Delaware and consent to the service of process, pleadings and notices in connection with any and all actions initiated in such courts. The parties agree that a final judgment in any action or proceeding in State of Delaware shall be conclusive and binding and may be enforced in any other jurisdiction.

18.2. Export Control. The Application is subject to United States export laws and regulations. Licensee agrees that it will not ship, transfer or export the Application into any country, or use the Application in any manner, prohibited by the United States Bureau of Industry and Security or economic sanctions regulations administered by the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC), or any applicable export laws, restrictions or regulations. These laws include restrictions on destinations, end users and end use. Licensee represents and warrants that it is not a resident or citizen of any country currently embargoed by the U.S. and that it’s not otherwise prohibited from receiving the Application.

18.3. Equitable Relief. Licensee acknowledges and agrees that monetary damages would not be a sufficient remedy for Licensee’s breach of this Agreement and that Deepwave is entitled, without waiving any other rights or remedies, to seek injunctive or equitable relief as may be deemed proper by any court of competent jurisdiction without the necessity of posting a bond or proving actual damages, irreparable injury or lack of a remedy at law.

18.4. Allocation of Risk. Licensee acknowledges and agrees that each provision of this Agreement that provides for a disclaimer of warranties or an exclusion or limitation of damages represents an express allocation of risk and is part of the consideration of this Agreement.

18.5. Severability. The unenforceability of any provision of this Agreement shall not impair the enforceability of any other part of this Agreement. If any provision of this Agreement is invalid or unenforceable, in whole or in part, then this Agreement is deemed amended to delete or modify, as necessary, the invalid or unenforceable provision to render it valid, enforceable and, insofar as possible, consistent with the original intent of the Parties.

18.6. U.N. Convention. The parties agree that neither the U.N. Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act, or any version thereof, in any form ("UCITA"), shall apply to this Agreement. To the extent that UCITA is applicable by reason of its adoption in a state, the parties agree to opt out of the applicability of UCITA pursuant to their Opt-Out provision(s).

18.7. No Third Party Beneficiaries. No provisions of this Agreement are intended, nor shall they be interpreted, to provide or create any Third Party beneficiary rights or any other rights of any kind in any other party with respect to the terms of this Agreement.

18.8. Headings. The inclusion of headings is for convenience of reference only and shall not affect the construction or interpretation of this Agreement.

18.9. Entire Agreement. This Agreement and any exhibits incorporated to this Agreement constitute the entire agreement of the parties with respect to the subject matter of this Agreement and supersede all prior negotiations, conversations, or discussions between the parties relating to this subject matter. Any additional and/or conflicting terms on documents issued by Licensee are null, void, and invalid.

18.10. Amendment; Waiver. Any amendment or waiver under this Agreement shall be in writing and signed by representatives of both parties. The failure of a party at any time to require performance of any obligations of the other party shall not be deemed a waiver and shall not affect its right to enforce any provision of this Agreement at a subsequent time.

18.11. Notices. Any notices required or permitted by this Agreement shall be in writing and shall be delivered as follows, with notice deemed given as indicated: (i) by personal delivery, when delivered personally; (ii) by overnight courier, upon written verification of receipt; (iii) by facsimile transmission, upon acknowledgment of receipt of electronic transmission, provided that notice is also provided by one of the other methods herein within five (5) days thereafter; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt. Notice shall be sent to the addresses set forth above or to such other address as either party may specify in writing. Notices to Deepwave shall be addressed to: Deepwave Digital, Inc., 1429 Walnut St, Suite 1000, Philadelphia, PA 19102.

Last update: May 9, 2022