OEM EVALUATION AGREEMENT

In consideration of the licenses, covenants and conditions set forth in this Agreement, Company and Evaluator hereby agree as follows:

1. DEFINITIONS

The following capitalized terms shall have the following meanings:

1.1 “Effective Date” shall mean the date when this Agreement is electronically accepted by Evaluator during the installation process of the Software.

1.2 “Evaluation Plan” shall mean the evaluation plan attached hereto as Exhibit A.

1.3 “Feedback” shall mean identification of errors or bugs, modifications, design changes, features or improvements to the Software that Evaluator is required to respond, propose or suggest, as set forth in the Evaluation Plan, resulting from Evaluator’s testing of the Software under this Agreement.

1.4 “Software” shall mean the Company Software and related documentation and materials that Company provides to Evaluator under this Agreement as specified in the Evaluation Plan.

1.5 “Term” is defined in Section 7.1 and specified in the Evaluation Plan.

2. License

2.1 License. Subject to the terms and conditions of this Agreement, Company hereby grants to Evaluator, and Evaluator hereby accepts a limited, nonexclusive, personal, non-transferable, royalty-free and fully revocable right and license during the Term to install and use the Software solely for internal testing of the Software as set forth in the Evaluation Plan.

2.2 Restrictions. Evaluator shall not use the Software for any purpose other than as expressly permitted under Section 2.1. Without limiting the foregoing, Evaluator shall not (i) use the Software for any commercial or other production purposes; (ii) copy, sublicense, rent, sell, lease or otherwise transfer or distribute the Software or any portion thereof to any person or entity; (iii) use, or allow others to use, the Software for the benefit of any third party; and (iv) modify or alter the Software or any portion thereof. The Software contains trade secrets of Company, and Evaluator agrees that it shall not reverse engineer, disassemble, or decompile the Software, or otherwise attempt to derive the Software’s design, source code or underlying algorithms, file formats or programming or interoperability interfaces of the Software or its constituent parts (except to the extent that applicable law prohibits such reverse engineering restrictions).

3. LIMITATIONS ON USE OF SOFTWARE

Only Evaluator is granted the right to install and test the Software for the duration of the Term of this Agreement. Evaluator shall not enable or allow other users to install or use the Software.

4. Proprietary rights

4.1 Company. This Agreement only grants a license and is not a sale of the Software or any portion or copy thereof. As between the parties, Company owns all right, title and interest in and to the Software, and all copyright, trade secret, trademark, patent, and other intellectual property rights therein. Evaluator agrees that Company shall have, and Evaluator hereby assigns to Company, any and all right, title, and interest in and to any Feedback provided to Company hereunder without the payment of any additional consideration therefore. Company reserves all right, title and interest in and to the Software not expressly granted to Evaluator under this Agreement, and except for the licenses granted by Company to Evaluator under this Agreement, no right, title, ownership, interest or license in or to the Software, whether by implication, estoppel or otherwise, is granted, assigned or transferred to Evaluator under or in connection with this Agreement.

4.2 Notices. The Software contains copyright material, trade secrets and other proprietary information of Company, and may be covered by Company patents. Evaluator agrees not to remove, destroy, or alter any patent, trademark, copyright or other proprietary rights notices contained in or on the Software.

5. CONFIDENTIALITY

5.1 Definition of Confidential Information. Evaluator acknowledges that, whether disclosed orally or in writing: (a) the Software, or any other related materials provided by Company to Evaluator under this Agreement, including, without limitation, all computer programs, flowcharts, diagrams, manuals, schematics, development tools, specifications, design documents, marketing information, financial information, business plans and other information relating to the Software, including its functions, features, performance, bugs and appearance, and Evaluator’s possession or use of the Software, and any other information received by Evaluator from Company and (b) any and all Feedback obtained or acquired by Evaluator in connection with the testing and evaluation of the Software shall be deemed “Confidential Information.”

5.2 Exceptions. “Confidential Information” does not include any information that: (i) is, or becomes, publicly known through no wrongful act on the part of Evaluator; (ii) is already known to Evaluator, or becomes known to Evaluator without restriction on disclosure; (iii) is independently developed by Evaluator without use of or access to the Confidential Information of Company; or (iv) is obtained by Evaluator, without restriction, from a source other than Company without breach of this Agreement by Evaluator and otherwise not in violation of Company’s rights.

5.3 Use of Company Materials and Confidential Information. Evaluator agrees that it will use Confidential Information only in accordance with the terms of this Agreement, as expressly authorized solely for the purpose of installing and using the Software for internal testing. Evaluator acknowledges and agrees that the Confidential Information is furnished to Evaluator on a confidential and secret basis. Evaluator shall use reasonable efforts, consistent with the obligations set forth hereunder and the practices and procedures under which it protects its own most valuable proprietary information and materials, to protect the Software against any unauthorized or unlawful use or copying by any third party.

5.4 Disclosure. Evaluator agrees to retain the Confidential Information in confidence for period of five (5) years. Evaluator shall not, at any time, disclose the Confidential Information directly or indirectly to any third person, and Evaluator specifically shall not disclose or provide in any manner to any third party access to the Software. Evaluator may disclose Confidential Information as required by a court or under operation of law or order provided that Evaluator notifies Company of such requirement prior to disclosure, Evaluator discloses only that information required, and Evaluator allows Company the opportunity to object to such court or other legal body requiring such disclosure. This obligation of confidentiality set forth in this Section will survive the termination of this Agreement for the duration of the confidentiality period.

6. DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITy

6.1 DISCLAIMER OF WARRANTY. Evaluator ACKNOWLEDGES THAT THE software IS LICENSED FOR TESTING AND EVALUATION PURPOSES ONLY AND IS DELIVERED “AS IS”. COMPANY DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED, FAULT-TOLERANT, OR ERROR-FREE, THAT ANY PRODUCT ERRORS WILL BE CORRECTED, THAT THE PRODUCT WILL EVER BE COMPLETED OR COMMERCIALLY AVAILABLE. Company hereby disclaims all other express warranties or implied warranties of any kind, including warranties of merchantability and fitness for a particular purpose, and non-infringement of any rights.

6.2 Limitation of Liability. Company shall not be liable or obligated to Evaluator or any other person or entity with respect to any subject matter of this Agreement under any contract, negligence, strict liability or other legal or equitable theory for any consequential, punitive or indirect damages or lost profits even if advised of the possibility of such damages. IN NO EVENT SHALL Company BE LIABLE WITH RESPECT TO THE DELIVERY, USE OR PERFORMANCE OF THE Software OR OTHERWISE ARISING OUT OF OR RELATED TO THIS AGREEMENT for any amounts in excess of $1,000.

7. TERM and termination

7.1 Term. The term (“Term”) of this Agreement will commence as of the Effective Date and will expire after the Beta Testing Period as set forth in the Evaluation Plan unless extended by a writing signed by both parties or sooner terminated in accordance with Section 7.2 below.

7.2 Termination. Either party may terminate this Agreement prior to the expiration of the Term upon five-(5) calendar days prior notice to the other party for any reason.

7.3 Effect of Termination. Upon expiration or termination of this agreement for any reason, Evaluator shall immediately and permanently discontinue all use of the Software, return the Software (in substantially the same condition as it was received by Evaluator), and all property (of whatever description or nature) belonging to Company, purge all software components of the Software and any files relating to the Software from its computer systems and storage media or devices, and provide written certification that the foregoing obligations have been completed. The following provisions shall survive the expiration or termination of the Agreement.

8. GENERAL PROVISIONS

8.1 No Obligations. Nothing in this Agreement shall result in any obligation on the part of Evaluator or Company to enter into any further agreement with the other with respect to the subject matter hereof or to license or sell the Software for commercial or other use. Company is not obligated to make the Software available as a commercial product.

8.2 Assignment. This Agreement shall not be assigned by Evaluator, by operation of law or otherwise, without the prior written consent of Company, which Company may withhold at its sole discretion.

8.3 Survival. In addition to the provisions that by their terms survive termination, the following provisions shall survive termination or expiration of this Agreement: Sections 1, 2.2, 4-6, 7.3 and 8.

8.4 Governing Law. This Agreement will be governed by and construed and enforced in accordance with the laws of the State of California, without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the laws of California. The jurisdiction and venue for actions related to the subject matter hereof shall be any court in Santa Clara County, state of California, and Evaluator hereby consents to such jurisdiction.

8.5 Export. Evaluator shall use the Company Materials in compliance with all applicable laws, statutes, rules and regulations. Evaluator acknowledges that the Company Materials and other technical information provided by Company hereunder may be subject to United States or other governments’ export laws, rules and regulations, and any use or transfer of that technical information or products made using such technical information must be permitted or authorized under those laws, rules or regulations. It is the sole responsibility of Evaluator to comply with any export or import restrictions.

8.6 Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision or portion shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.

8.7 Notices. Any notice required or permitted hereunder will be sent to the address first specified above or such other address as the party may hereafter specify in writing. Such notice will be deemed given upon personal delivery to the appropriate address, three (3) business days after the date of mailing if sent by certified or registered mail, or one (1) business day after the date of deposit with overnight courier.

8.8 Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes any prior or contemporaneous communications, representations or agreements between the parties, whether oral or written, regarding the subject matter of this Agreement. The terms and conditions of this Agreement may not be modified except by an amendment signed by an authorized representative of each party.

8.9 Counterparts. This Agreement may be executed in one or more counterparts, or by facsimile, each of which will be deemed an original and all of which together will constitute one instrument.

[Exhibit A to follow]