Master Software Purchase Agreement

Master Software Purchase Agreement This Master Software Purchase Agreement ( Agreement ) is entered into as of Wednesday, March 12, 2014 (the Effective Date ) by and between with principal offices at ( BUYER ) and Netragard, Inc., a Delaware corporation with principal offices at 100 Powdermill Road, Suite #333, Stow, Ma ( Netragard ). Netragard is in the business of selling software ( Software ) developed by Netragard s team of developers and subcontractors. 1. Term. The Agreement will be effective as of the date first written above and continue thereafter for a period of twenty-four (24) months ( Term ) unless earlier terminated by either party. Either party may terminate this Agreement by providing the other party thirty with (30) days advance written notice. This Agreement may be extended by mutual written agreement by both parties. The terms of this Agreement will continue in effect for any Purchase Order entered into that is outstanding at the time of termination of this Agreement or expiration of the Term. 2. Purchase Order for Purchase of Software. BUYER may issue one or more purchase orders (each, a Purchase Order or PO ) to Netragard for the purchase of certain Software. Each Purchase Order will set forth the exclusivity, if any, of the Software being purchased, the purchase price and the delivery terms. Each Purchase Order wherein the purchase price is in the amount of $40,000.00 or less shall be paid 30 days after the receipt of a fully executed Purchase Order. All Purchase Orders with a purchase price of greater than $40,000.00 shall be paid on the following schedule: 50% of the purchase price paid 30 days after the receipt of fully executed PO 25% of the purchase price paid 60 days after the receipt of fully executed PO (Month two) 25% of the purchase price paid 90 days after the receipt of fully executed PO (Month three) However, an Exposure (as defined below) of the Software shall result in pro-rated payments. A daily prorated amount of 3.33% of the current payment shall be paid between the date of the previous payment due date or signed Purchase Order and the date of Exposure. For example, if an Exposure occurs 51 days after Purchase Order approval, 70% of the second 25% installment payment shall be due to Netragard (3.33% x 21 days). An Exposure, for the purposes of this Agreement, shall be defined as the first date on which either a) the Software is deemed outmoded or obsolete for the purposes for which it was created as determined in the reasonable discretion of the parties, or b) when an applicable method of vulnerability is announced on any legitimate (i.e., industry recognized) security list or other relevant public forum. Each Purchase Order shall be deemed to be placed under and incorporate the terms and conditions of this Agreement. Whenever the provisions of a Purchase Order, provided by Page 1 of 6

BUYER, directly conflict with the provisions of the Agreement, the typewritten provisions of the Purchase Order, as accepted or otherwise acknowledged by BUYER and Netragard, shall control. 3. Upon agreeing to the terms therein, Netragard will sign the Purchase Order issued by BUYER and return same via facsimile or email and promptly deliver the Software. Delivery of the Software will be done electronically and by no other means. Upon receipt of the Software, BUYER will be afforded 15 business days to review the Software and verify that its functionality, level of reliability, and overall performance satisfy the requirements set forth in the Purchase Order before agreeing to its purchase. If, after such review period, BUYER rejects or does not accept the Software, then BUYER shall notify Netragard in writing of such rejection and shall not be liable for any payment under the applicable Purchase Order. Software rejected by BUYER hereunder shall not be used, copied or otherwise disseminated by BUYER in any manner, directly or indirectly. If, after such review period, BUYER shall include its acceptance of the Software and its agreement to purchase by executing the Purchase Order and forwarding the fully executed copy to Netragard, in order to begin the payment process described above. 4. Intellectual Property. Provided that the applicable Purchase Order specifically and expressly states that Netragard is providing the relevant Software to BUYER on an exclusive basis (an Exclusive Purchase Order ), and subject at all times to Netragard s receipt of full payment for the applicable Software, Netragard hereby sells to BUYER all right, title, and interest (including any and all intellectual property rights, collectively, the Rights ) in and to the Software described in such Exclusive Purchase Order. If a Purchase Order does not provide for the exclusive use or sale of the Software to BUYER, then subject to Netragard s receipt of full payment for the applicable non-exclusive Software, Netragard hereby grants to BUYER a nonexclusive, perpetual, worldwide, royalty-free license to use the Software Infringement: Netragard hereby warrants and represents that to the best of Netragard s knowledge, the Software, as delivered to BUYER, does not and shall not violate the intellectual property rights of any third party. Seller shall indemnify, defend, and hold harmless, BUYER and BUYER' Customer and their respective officers, directors, agents, and employees against Losses for any allegation of or suit or action for infringement of any United States or foreign patent, copyright, trademark, or other intellectual property right arising out of the performance of Work under the Purchase Order or out of the use or disposal of such Work by or for the account of BUYER. The foregoing indemnity shall not apply unless BUYER or BUYER' Customer informs Seller of the suit or action or other proceeding alleging infringement and gives Seller the opportunity as is afforded by applicable laws, rules, or regulations, to participate in the defense thereof. 5. Warranty of Functionality. For a period of 30 days following delivery and acceptance of the Software, Netragard warrants that the Software shall perform in all material respects when used with the appropriate computer equipment. In the event of any breach or alleged breach of this warranty, BUYER shall promptly notify Netragard and return the Software to Netragard. Page 2 of 6

Netragard shall correct the Software at its own expense so that it operates according to the warranty. No further payments under Section 2 above will be required until the Software operates according to the warranty. This warranty shall not apply to the Software if modified by BUYER or if used on an operating environment not approved by Netragard. In the event of any defect in the media upon which the Software is provided arising within 30 days of the date of delivery of the Software, upon return to Netragard of the Software upon the original media, Netragard shall provide BUYER a new copy of the Software media at its own expense. 6. Netragard s Representations and Warranties. Upon the acceptance of each Purchase Order, Netragard represents and warrants that (i) immediately prior to the acceptance of each Purchase Order, Netragard owns all Rights in and to the Software; (ii) with regard to Exclusive Purchase Orders, Netragard is allowed to sell the Software to BUYER; (iii) Netragard has the full right, power, and authority to enter into this Agreement; and (iv) each transfer of the Rights in Software to BUYER pursuant to any Exclusive Purchase Order, and the licensure of the Software to BUYER pursuant to any other Purchase Order, does not and will not knowingly violate any law, statute, other governmental regulation or any agreement to which Netragard is a party or by which Netragard is bound. 7. BUYER Representation and Warranties. BUYER hereby represents and warrants that (i) it will not purchase Software for malicious or illegal purposes; and that (ii) during the term of this Agreement and for a period of one (1) year following the termination of this Agreement, BUYER will not knowingly circumvent Netragard to engage in a direct business relationship with Netragard s outside developers, without express written consent from Netragard. 8. Indemnification. BUYER hereby agrees to indemnify, defend and hold harmless Netragard, its directors, officers, employees and affiliates (the Netragard Indemnified Entities ) from and against any and all claims, actions, demands, suits, liabilities, or obligations brought against Netragard Indemnified Entities for negligent acts or willful misconduct in the use of the Software by BUYER. Each party (the Indemnifying Party ) agrees to indemnify and hold harmless the other party (the Indemnified Party ) against any third party claims against the Indemnified Party for loss, damage, liability, or expense (including but not limited to reasonable attorneys fees) ( Losses ) arising from the Indemnifying Party's willful misconduct; or personal injury, death or property damage caused by the willful misconduct of employees of the Indemnifying Party. Netragard agrees to indemnify, defend, and hold BUYER, it directors, officers, employees and affiliates harmless from and against third party claims asserting that any deliverable, product of Netragard, or work performed by Netragard in connection with this Agreement knowingly infringes any intellectual property rights of a third party. Page 3 of 6

In all cases, (i) the Indemnified Party will give prompt written notice to the Indemnifying Party of any claim, demand or action for which indemnity is sought (an Indemnified Claim ); (ii) the Indemnifying Party will have sole control of the defense thereof; and (iii) the Indemnified Party will fully cooperate in the defense of any such claim, demand or action, at the expense of the Indemnifying Party. An Indemnifying Party shall not settle any Indemnified Claim without the Indemnified Party s express, written consent if such settlement (i) would require the Indemnified Party to admit guilt, directly or indirectly, or (ii) would require the Indemnified Party to pay any amounts under such claim(s). Seller acknowledges that, as an independent contractor, it is furnishing Work to BUYER which may be subject to certain local, state, Federal, and foreign laws and regulations. Seller therefore agrees to defend, indemnify and hold harmless BUYER and its respective directors, officers, agents, and employees, against all Losses which arise out of or relate to Seller's failure to comply with all applicable local, state, Federal, and foreign laws and regulations in the performance of Seller's obligations under the Purchase Order. Seller also agrees to defend, indemnify and hold harmless BUYER and its respective directors, officers, agents, and employees, against all Losses which arise out of or relate to Seller's failure to comply with the provisions of the Purchase Order. 9. Confidentiality. At all times Netragard will keep and hold the Software, the source code, the identity of BUYER, confidential information about the Software, and this Agreement (collectively, Proprietary Information ) in strict confidence and trust. All Proprietary Information shall be subject to the terms and conditions of the Non-Disclosure Agreement dated 10/04/2013 between the parties, which is attached hereto and incorporated herein by reference as Exhibit A. Netragard will not be obligated to disclose to BUYER the identity of the Software s developer(s). 10. Liability. Except for any indemnification provided herein, in no event shall either party be liable to the other party, their employees, agents, or representatives be liable to the other party relating to any acts or omissions of either party in connection with the purchase order for any indirect, special, incidental or consequential damages of any kind, however caused, or any claims or demands against either party by any other entity, whether such remedy is sought in contract, tort including without limitation, negligence, strict liability or otherwise, except as limited by law. 11. Injunctive Relief. Each party understands that in the event of a breach or threatened breach of this Agreement by the other party, such party may suffer irreparable harm and will therefore be entitled to seek injunctive relief to enforce the Agreement in addition to all other remedies available to it. 12. Governing Law; Severability. This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without giving effect to that body of laws pertaining to conflict of laws. If any provision of this Agreement is determined by any court or arbitrator of competent jurisdiction to be invalid, illegal or unenforceable in any respect, Page 4 of 6

such provision will be enforced to the maximum extent possible giving the intent of the parties hereto. If such clause or provision cannot be enforced, such provision shall be stricken from this Agreement and the remainder of this Agreement shall be enforced as if such invalid, illegal or unenforceable clause or provision had (to the extent not enforceable) never been contained in this Agreement. 13. Dispute Resolution. Both parties shall attempt in good faith to resolve disputes arising hereunder. Pending resolution of any dispute, Netragard agrees to proceed diligently with the performance of this Agreement. Any dispute, claim, action or suit arising out of or relating to this Agreement may only be brought exclusively in a court of competent jurisdiction in the Commonwealth of Virginia; provided, however, that either party may bring an action for temporary injunctive relief in any jurisdiction of competent jurisdiction to prevent an anticipated or actual breach of this Agreement. Each Party hereby waives any objections or right as to lack of jurisdiction or venue, or inconvenient forum. The parties agree to waive the right to jury trial. 14. Notices. All notices or communications (or other normal business communications) required by this Agreement or desired to be given hereunder, shall be in writing and addressed as follows, and given by certified or registered mail, return receipt requested, courier, e-mail or facsimile transmission and shall be deemed to be given when received. If to BUYER: Attn: E-mail address: If to Netragard: Netragard, Inc. 100 Powdermill Road, Suite #333 Acton, Ma 01720 Attn: Adriel T. Desautels E-mail address: adriel@netragard.com Each party may change its cognizant point of contact by written notice to the other. 15. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered will be deemed an original, and all of which together shall constitute one and the same agreement. 16. Titles and Headings. The titles, captions and headings of this Agreement are included for ease of reference only and will be disregarded in interpreting or construing this Agreement. Page 5 of 6

Unless otherwise specifically stated all references herein to sections and exhibits will mean sections and exhibits to this Agreement. 17. Entire Agreement. This Agreement and the documents referred to herein constitute the entire agreement and understanding of the parties with respect to the subject matters of this Agreement, and supersede all prior understandings and agreements, whether oral or written, between or among the parties hereto with respect to the specific subject matter hereof. 18. Amendment and Waivers. This Agreement may be amended only by a written agreement executed by each of the parties hereto. No amendment of or waiver of, or modification of any obligation under this Agreement will be enforced unless set forth in a writing signed by the party against which enforcement is sought. Any amendment effected in accordance with this section will be binding upon all parties hereto and each of their respective successors and assigns. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance. No waiver granted under this Agreement as to any one provisions herein shall constitute a subsequent waiver of such provisions or of any other provision herein, nor shall it constitute the waiver of any performance other than the actual performance specifically waived. 19. Successors and Assigns; Assignment. Except as otherwise provided in this Agreement, this Agreement, and the rights and obligations of the parties hereunder, will be binding upon and inure to the benefit of their respective successors, assigns, heirs, executors, administrators and legal representatives. Netragard and BUYER may assign any of their rights and obligations under this Agreement with the prior written consent of the other party, which shall not be unreasonably withheld. The foregoing shall not apply to assignment to a successor corporation as a result of a merger or a sale of all or substantially all of the assets or stock of that party. 20. Further Assurances. The parties agree to execute such further documents and instruments and to take such further actions as may be reasonable necessary to carry out the purposes and intent of this Agreement. BUYER: By: Netragard: By: Signature: Signature: Title: Title: Page 6 of 6