TWINSTRATA, INC. CLOUDARRAYTM END USER LICENSE AGREEMENT This CloudArrayTM End User License Agreement ("Agreement"), effective as of the date of acceptance by Customer (as Customer may be identified from time to time), defines the rights granted by TwinStrata, Inc. ("TwinStrata") to Customer, and the obligations accepted by Customer with respect to: (i) Customer's use of CloudArrayTM (hereinafter defined, including therein any associated software, as the "Software") (the "License"), and, (ii) as may be applicable from time to time, TwinStrata's provision of services, if any, from time to time ("Services") to the Customer (whether in the course of any License trial or evaluation, or upon and following purchase of any such License, and, (iii) as may be applicable from time to time, the purchase by Customer of certain Hardware (as hereinafter defined) and services related to such Hardware in connection with the License and/or Services. In the case of the applicability of the aforereferenced (iii), this Agreement shall be referred to and/or otherwise known as the TwinStrata, Inc. CloudArrayTM End User Sales and License Agreement (and also as "the Agreement"). BY ACCEPTING THIS AGREEMENT, EFFECTUATED BY CLICKING A BOX INDICATING ACCEPTANCE OR BY EXECUTING AN ORDER FORM OR THE LIKE THAT REFERENCES THIS AGREEMENT OR BY USING THE SOFTWARE OR SERVICES OR HARWARE OR RELATED SERVICES, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THE ACCEPTING PARTY REPRESENTS THAT HE/SHE/IT HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF THE ACCEPTING PARTY DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH PARTY MUST NOT ACCESS OR USE THE SOFTWARE OR SERVICES OR HARWARE OR RELATED SERVICES. A PARTY MAY NOT ACCESS THE SOFTWARE OR SERVICES OR HARWARE OR RELATED SERVICES IF SUCH PARTY IS A DIRECT COMPETITOR OF TWINSTRATA, EXCEPT WITH ITS EXPRESS PRIOR WRITTEN CONSENT. IN ADDITION NO ENTITY MAY ACCESS THE SOFTWARE OR SERVICES OR HARWARE OR RELATED SERVICES FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES, WITHOUT TWINSTRATA'S EXPRESS PRIOR WRITTEN CONSENT. 1. Definitions. "Documentation" means any user manuals or other technical specification documentation with regard to any Product generally made available by TwinStrata to its customers from time to time. "Hardware" means any hardware purchased by Customer from TwinStrata into which the Software has been installed or embedded. "Order Form" means (i) an order form in TwinStrata's standard form, as it may be amended from time to time, or (ii) TwinStrata's customer information request completed and submitted by Customer via TwinStrata's website or otherwise, and offered by Customer for acceptance by TwinStrata. "Products" means Software and/or Hardware sold by TwinStrata in accordance with an Order Form. "Software" means the TwinStrata CloudArrayTM software in object code form. "Software" shall also include any maintenance releases, and any modifications, improvements, corrections, bug fixes, updates or enhancements provided by TwinStrata to Customer from time to time. Unless otherwise noted, the Software includes the Documentation. "Support and Maintenance Services" or "Services" means the then-current version of any TwinStrata support and maintenance services, as agreed-upon and supplied by TwinStrata to Customer, as applicable, from time to time, or any warranty or other services TwinStrata may at any time provide Customer. 2. License. 2.1 Grant of License. Subject to all of the terms and conditions of this Agreement, TwinStrata grants Customer a perpetual, individual, non-transferable, non-sublicensable, non-exclusive, limited license to use the Software, for its own internal business purposes, but only in accordance with: (i) the Documentation, (ii) this Agreement, (iii) any instance, term, user, server, computer, field of use, or other restrictions or conditions set forth in the applicable Order Form, as amended from time to time, and (iv) in accordance with applicable federal, state or local law or ordinance. 2.2. License Restrictions. Customer shall not (and shall not allow any third party to, and shall promptly notify TwinStrata of any knowledge of anyone's actions to): (a) decompile, disassemble, or otherwise reverse engineer any aspect or component of the Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of any aspect or component of the Software by any means whatsoever; (b) use the Software (or any portion thereof) to provide time sharing, hosting, service provider, service bureau or like services or for consulting or professional services; (c) distribute, assign, pledge, sublicense, lease, sublease, loan, mortgage, lien, share, rent, give, deliver or otherwise transfer the Software, or any interest in the Software or allow it to be available for use, except as expressly authorized hereunder; (d) copy the Software; (e) remove any product identification, proprietary, copyright or other notices contained in the Software or any Documentation or other item; (f) modify any part of the Software, create a derivative work of any part of the Software, or incorporate the Software into or with other software; (g) use any Software on a stand-alone basis or in any other way other than as delivered to Customer; (h) take any actions that could cause the Software to become subject to any open source or quasi-open source license agreement; (i) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source other than TwinStrata relating to the Software; or (j) use the Software for the design or development of nuclear, chemical, or biological weapons or missile technology without the prior permission of the United States government. 3. Ownership. Notwithstanding anything to the contrary contained herein (except for the limited license rights expressly provided herein), TwinStrata and its suppliers, if any, have and will retain all right, title and interest (including, without limitation, all patent rights, copyrights, trade secret rights, trademarks, service marks, related goodwill, and confidential and proprietary information) in and to the Software (including the Documentation and source code) and all modifications to, and derivative works based upon, the Software. Notwithstanding any use of terms such as "procure," "purchase," "sale," or similar terms hereunder, or any course of dealing between the parties, all Software and related items are offered by TwinStrata on a license basis only. All Intellectual Property Rights in the Software and its components, as well as the Hardware, are and will remain the sole and exclusive property of TwinStrata and its suppliers, if any, whether the Software is separate or combined with any other software. TwinStrata's rights under this Agreement include, but are not be limited to (i) all copies of the Software, in whole and in part, in object code and in source code format; and (ii) all modifications to, and derivative works based upon, the Software. For purposes herein, "Intellectual Property Rights" means patent rights (including patent applications and disclosures), copyrights (including, but not limited to, rights in audio visual works and moral rights), trade secret rights, rights of priority and any other intellectual property right recognized in any country or jurisdiction in the world. In addition, TwinStrata shall have a perpetual, royalty-free, worldwide, transferable, sublicenseable, irrevocable license to use or incorporate into the Software and Services any suggestions, enhancement requests, recommendations or other feedback provided by any Customer or any time, including Users, relating to the Software or Services. 4. Delivery; Keys. 4.1 Delivery. TwinStrata may deliver the Software and related materials (for example, including Documentation) to Customer solely in electronic form. TwinStrata will make reasonable efforts to achieve the Customer's requested shipment dates. TwinStrata assumes no liability for any direct, liquidated or other indirect damages during shipment or delivery of the Software. Title to the Software and all intellectual property rights therein shall remain with TwinStrata or its licensors. 4.2 Keys. Customer alone is responsible for protecting and safeguarding any keys, passwords, certificates, passwords, access codes, user ID's or other login information (collectively, "Keys") provided to Customer or generated in connection with Customer's use of the Software, the Service and/or any Hardware. Customer will not disclose or make available any Keys other than to its authorized employees with a "need to know" and shall use its best efforts to prevent unauthorized access to, or use of, the Software, Services and/or any Hardware. Customer remains fully responsible for all activities enabled by use of its Keys. 5. Term of Agreement. 5.1 Term. This Agreement and this license shall terminate automatically if Customer: (a) breaches of any of the terms of this Agreement; (b) ceases operation without a successor; (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days thereafter); or (d) fails to pay any moneys or fees due to TwinStrata. TwinStrata shall provide any Services only during such period as Customer has paid the applicable fees for the Services. If Customer is using the Software or the Services for a trial or evaluation period and does not purchase a License before the end of that period, this Agreement will terminate at the end of such trial or evaluation period. Termination is not TwinStrata's exclusive remedy and its exercise of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. 5.2 Termination. Upon any expiration or termination of this Agreement, Customer shall immediately cease any and all use of any Software and shall return or destroy all copies thereof, as well as of any Documentation, in its possession, custody or control and an officer of the Customer shall promptly thereupon so certify to TwinStrata in writing. Customer agrees to indemnify TwinStrata with respect to any losses, damages and expenses the latter may incur resulting from any breach by Customer of any term of this Agreement. 5.3 Survival. Sections: 2 (License), 3 (Ownership), 5 (Term of Agreement), 6 (Warranties), 7 (Limitation of Remedies and Damages), 8 (Confidential Information), 9 (Marketing and Disclosure), 10 (General), and 11 (Export Compliance) shall survive any termination or expiration of this Agreement. 6. Warranties. 6.1. Limited Warranties on Software and Hardware. TwinStrata warrants that each of: (i) the Software when downloaded (or shipped, in the case when licensed with Hardware) and (ii) any Hardware will conform in all material respects to its then current product specifications and be free from material defects in materials and workmanship during the limited warranty period of thirty (30) days ("Limited Warranty Period"). The Limited Warranty Period will begin: (i) the case of Software, when downloaded (or shipped, in the case when licensed with Hardware) and (ii) in the case of Hardware, on the date of shipment from TwinStrata. TwinStrata makes no warranty or representation that the Software or Hardware will work in combination with any third-party network or computing equipment or software, that the operation of the Software or Hardware will be uninterrupted or error free, or that defects in the Software will be corrected. No warranties for third party software are provided by this limited warranty. TwinStrata makes no warranty with respect to defective conditions or non-conformities resulting from Customer's misuse, misinstallation, mishandling, neglect, accident, or abuse of Software or Hardware, or Customer's failure to apply TwinStrata-supplied modifications or corrections. 6.2. Warranty Exclusions. The Limited Warranty on Hardware does not cover: (i) third party products; (ii) components that are added to the Products after the Products are shipped from TwinStrata; (iii) any problems caused by such components or third party products; (iv) repairs necessitated by software problems or as a result of alteration or repair by anyone other than TwinStrata or its representatives; or (v) damage or problems due to external causes, including accident, abuse, misuse, neglect, problems with electrical power, acts of God, usage not in accordance with product instructions, or normal wear and tear. 6.3. Other Warranty Matters. TwinStrata does not warrant that the Software or Hardware will function in any specific configuration that includes non-TwinStrata Hardware or Software or will function to produce a particular result, even if the specific configuration or the result has been discussed with TwinStrata. Additionally, Customer understands that the Products have been designed, manufactured, and tested by TwinStrata or its suppliers for use in general-use office/business and/or consumer environments. TwinStrata has not tested or certified its Products for use in high-risk applications, including, but not limited to aircraft navigation, air traffic control, emergency communications systems, medical systems, life support machines, the operation of nuclear facilities, weapons systems, or any other application where the failure or malfunction of Products can reasonably be expected to result in death, personal injury, severe property damage or severe environmental harm ("High Risk Applications"). Customer understands and agrees that TwinStrata makes no warranties or assurances that the Products are suitable for any High Risk Applications and Customer shall defend and indemnify TwinStrata and its suppliers from any claims made by third parties resulting from such High Risk Applications. As between TwinStrata and Customer, Customer is responsible for the design and implementation of configurations, systems and networks suitable for the risks involved in the relevant Customer (or end user) applications and operating environments. 6.4. Warranty Remedies. If any Product fails to conform to its warranty, TwinStrata's (and its suppliers') sole and exclusive liability will be to repair or replace such Product, at TwinStrata's option, within a reasonable period. To receive the benefit of the foregoing warranty: (i) Customer must promptly notify TwinStrata in writing within the Limited Warranty Period that such Product is defective, with an explanation of the deficiency, and follow TwinStrata's return instructions to return the Product or allow for its return and/or replacement, and (ii) TwinStrata must be reasonably satisfied, in good faith, that claimed deficiencies exist and were not caused by accident, misuse, neglect, alteration, repair, improper installation or improper testing on the part of Customer. The warranty excludes all duty, customs clearance, and other related charges. TwinStrata assumes no obligation to repair third party products or any warranted or non-warranted defects in any TwinStrata Product after the Limited Warranty Period unless and to the extent that Customer has contracted for relevant service and support. 6.5. Warranty Disclaimer. EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET FORTH IN SECTION 6.1 ABOVE, TWINSTRATA DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, CONDITION, TITLE, PERFORANCE, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY OTHERWISE ARISING OUT OF ANY PROPOSAL, QUOTATION OR OTHERWISE. TWINSTRATA NEITHER ASSUMES NOR AUTHORIZES ANY PERSON TO ASSUME FOR IT ANY OTHER LIABILITY. IN NO EVENT WILL TWINSTRATA OR ANY SUPPLIER BE LIABLE FOR ANY MONETARY DAMAGES OR OTHER COSTS IN CONNECTION WITH WARRANTY CLAIMS WHETHER FOR THE REPLACEMENT OR REPAIR OF PRODUCTS, INCLUDING LABOR, INSTALLATION OR OTHER COSTS. TwinStrata may, in its sole discretion, revise its Limited Warranty from time to time. However, no change in Limited Warranty will affect Product orders already accepted by TwinStrata. 6.6 TRIAL/EVALUATION PERIODS. NOTWITHSTANDING ANYTHING IN THIS AGREEEMENT TO THE CONTRARY, DURING ANY LICENSE TRIAL OR EVALUATION, THE SOFTWARE, HARDWARE AND ANY SERVICES ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY OR RECOURSE TO TWINTRATA FOR ANY REASON WHATSOEVER. 7. Limitation of Remedies and Damages. 7.1 NEITHER TWINSTRATA NOR ANY SUPPLIERS, NOR THEIR OFFICERS, DIRECTORS, EMOLOYEES, OR AGENTS, WILL BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES WHATSOEVER. NEITHER TWINSTRATA NOR ANY SUPPLIER HAS ANY LIABILITY TO CUSTOMER OR ANY PARTY FOR ANY LOSS OF INCOME, PROFIT OR SAVINGS (WHETHER DIRECT OR INDIRECT), LOSS OF USE, OR LOSS OR CORRUPTION OF DATA OR SOFTWARE. TWINSTRATA'S (AND ITS SUPPLIERS') MAXIMUM LIABILITY FOR A CLAIM ARISING OUT OF RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER TO TWINSTRATA FOR THE SPECIFIC PRODUCTS AND/OR SERVICES GIVING RISE TO SUCH CLAIM. TWINSTRATA'S AND ANY SUPPLIER'S CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WITHIN ANY TWELVE MONTH PERIOD SHALL NOT EXCEED THE AMOUNTS PAID HEREUNDER FOR THE SAME TWELVE MONTH PERIOD. NEITHER TWINSTRATA NOR ANY SUPPLIER SHALL HAVE ANY LIABILITY FOR ANY DAMAGES RESULTING FROM OR RELATED TO THE FAILURE OF AND/OR USE OF THE PRODUCTS IN ANY HIGH-RISK APPLICATIONS. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF THE FORM IN WHICH SUCH CLAIMS ARE BASED (WHETHER IN CONTRACT, TORT, OR OTHERWISE) AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITIES. 7.2 The parties agree that the limitations specified in this Section 7 will survive and apply even if any limited remedy specified in this Agreement is found to have failed its essential purpose. 8. Confidential Information. Customer agrees that the Software, Documentation, technical information and other code or data of any type provided by TwinStrata (or its agents) and any modifications, improvements, corrections, bug fixes, updates or enhancements thereto, at whatever point in time made and of whatever origin, shall be deemed trade secret and Confidential Information of TwinStrata without any marking or further designation, as well as all code, inventions, know-how, business, technical and financial information, and trade secrets it obtains from TwinStrata ("Confidential Data"). Customer will hold in confidence and not use or disclose any Confidential Information. Customer acknowledges that disclosure of Confidential Information would cause substantial harm to TwinStrata that could not be completely remedied by the payment of damages alone and, therefore, upon any such disclosure or threat of disclosure by the Customer, TwinStrata shall be entitled to seek appropriate equitable relief in addition to whatever remedies it might have at law without the posting of bond. Customer shall treat the Confidential Information in the same manner and with the same care, protection and discretion that it treats its own product or work that it does not want published, disclosed, divulged, or disseminated, but in no event with less than reasonable care. In no event shall any aspect of any Software or Services delivered to a Customer or information developed by TwinStrata in connection with any Services be construed to constitute "work-for-hire". In the event that the parties have executed any other non-disclosure document(s) between them (each an "Other NDA"), each such Other NDA shall remain in full force and effect, but to the extent it (a) maximizes the confidentiality of the Software and Services and TwinStrata's ability to enforce such, and (b) is not otherwise in conflict herewith. 9. Marketing and Disclosure. Customer will not disclose the terms of this Agreement to anyone other than (i) to its attorneys, accountants, lenders, or other professional advisors, pursuant to an agreement, or professional obligation, to maintain the confidentiality of this Agreement or (ii) as required by law or legal process (provided that Customer cooperates with TwinStrata in seeking confidential treatment or otherwise seeking to contest such disclosure in a lawful manner). Customer shall not use the trademarks of TwinStrata, its licensors or suppliers to identify any product other than the relevant product of TwinStrata, or its relevant licensor or supplier, as applicable. TwinStrata may disclose Customer as a customer of TwinStrata. Customer acknowledges that TwinStrata may utilize certain business information disclosed, generated or made available to it in conjunction with Customer's use of the Software, with the understanding that, other than in connection with providing the Software and any Services and TwinStrata's product development purposes related thereto, TwinStrata may only use and disclose such information to the extent that it: (i) is presented in combination with information gathered from other sources; (ii) does not disclose Customer's identity, including in any reports or analysis distributed to outside third parties; and (iii) does not unreasonably interfere with Customer's operation of the Software. 10. General. 10.1 Assignment. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. Customer may not assign or transfer this Agreement, in whole or in part, without TwinStrata's express prior written consent, and any purported assignment or transfer without such written consent will be a breach of this agreement and null and void. 10.2 Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect. 10.3 Governing Law; Jurisdiction, Venue; Limitations of Actions. This Agreement shall be governed by and interpreted under the internal laws of The Commonwealth of Massachusetts and the United States without regard to conflicts of laws provisions thereof. The United Nations Convention on the International Sale of Goods shall not apply. Unless waived by each party in its sole discretion, the sole and exclusive jurisdiction and venue for actions related to the subject matter hereof shall be The Commonwealth of Massachusetts and/or United States federal courts located in Suffolk County, Massachusetts, U.S.A., and both parties hereby submit to the personal jurisdiction of such courts. Customer may not bring any suit or action against TwinStrata for any reason whatsoever more than one year after the cause of action has accrued. The parties acknowledge that the original of this Agreement and all documents referenced herein are in English and the parties waive any right to have any of them written in any other language. 10.4 Injunctive Relief. Customer acknowledges and agrees that TwinStrata and its suppliers would be damaged irreparably in the event any of the provisions of Sections 2, 3, 7, 8 and/or 9 are not performed in accordance with their specific terms or otherwise are breached. Accordingly, Customer agrees that TwinStrata shall be entitled to an injunction or other equitable relief, without the posting of bond, to prevent breaches of such provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof, in addition to any other remedy to which it may be entitled, at law or in equity. 10.5 Attorneys' Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys' fees and costs from the non-prevailing party in connection with such action. 10.6 Notices. Any notice hereunder shall be in writing, if to TwinStrata to the following notice address: 24 Prime Parkway, Suite 301A, Natick, MA 01760, Attention: General Counsel, and to Customer to any address given by Customer to TwinStrata, and shall be deemed given: (i) upon receipt if by personal delivery; (ii) upon receipt if sent by certified or registered U.S. mail (return receipt requested); or (iii) two (2) business day after it is sent if sent by next day delivery by a nationally-recognized commercial delivery service. 10.7 Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless expressly agreed to in writing by a duly authorized representative of each of TwinStrata and Customer. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or in any other business form or payment method(s) employed by Customer will supersede the terms and conditions of this Agreement, and any such document or method(s) issued by a party hereto relating to this Agreement shall be for administrative purposes only and shall have no legal effect. 10.8 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. 10.9 Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party's behalf without the other party's prior written consent. 10.10 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to unforeseen events, which occur after the signing of this Agreement and which are beyond the reasonable control of the parties, such as strikes, blockade, war, terrorism, riots, natural disasters, refusal of license by the government or other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure at reasonable cost. 10.11 Third-Party Code. If designated in the Documentation, the Software may contain or be provided with certain third-party code. Ownership, use, warranty and other rights and terms with respect to any such designated code shall be as expressly set forth in the Documentation but in no event shall be less protective of the rights of the lawful owner(s) of such code than as otherwise set forth herein in favor of TwinStrata with respect to the Software. 10.12 Government End-Users. The Software and Documentation provided under this Agreement are commercial computer software programs developed solely at private expense. As defined in U.S. Federal Acquisition Regulations (FAR) section 2.101 and U.S. Defense Federal Acquisition Regulations (DFAR) sections 252.227-7014(a)(1) and 252.227-7014(a)(5) (or otherwise as applicable to Customer), the Software and Documentation licensed in this Agreement are deemed to be "commercial items" and "commercial computer software" and "commercial computer software documentation." Consistent with FAR section 12.212 and DFAR section 227.7202, (or such other similar provisions as may be applicable to Customer), any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. government (or any agency or contractor thereof) shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement. TwinStrata provides the Software and any Services for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Software and any Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data - Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with TwinStrata to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement. 10.13 Arbitration. All disputes, claims, and controversies between the parties arising out of or related to this Agreement except for non-payment or for breach of any obligation of confidentiality or infringement of any intellectual property right (which could cause irreparable harm and for which judicial action, or an injunction and/or specific performance or similar remedies may be sought in a court of law without any requirement to post a bond or have to prove any damages) shall be settled by arbitration. The arbitration shall be conducted in Boston, Massachusetts, U.S.A. by a panel of three (3) arbitrators under the then current Commercial Arbitration Rules of the American Arbitration Association. The arbitrators are prohibited from awarding damages or remedies in excess of those allowed by the provisions of this Agreement. The decision of the arbitrators shall be final and binding. 10.14 No Third Party Beneficiary. Customer acknowledges and agrees as follows: (i) any Customer who purchases Hardware Dell is a third party beneficiary of this Agreement and agrees to be bound to Dell's Customer Master Services Agreement set forth at www.dell.com/servicecontracts ("CMSA"), including terms and conditions incorporated by reference therein ; (ii) except as set forth in this section 10.14, this Agreement is solely for the benefit of the parties hereto, and no other person or entity shall be deemed a third party beneficiary hereof, except where expressly indicated, (iii) any Customer who purchases Hardware, and (iv) Customer shall be solely responsible for, and TwinStrata shall have no obligation to honor, any warranties that Customer may provide. Customer shall defend, indemnify and hold TwinStrata harmless from and against any loss arising in connection with or based on any warranties or undertakings offered by Customer. 11. Export Compliance. Customer is responsible for all taxes imposed in connection with the licensing of Software to Customer (except taxes imposed on TwinStrata's income) and any related penalties, interest and collection costs. On Software provided to or to be used outside the U.S.A., Customer is responsible for obtaining all import licenses, paying import fees, duties and customs fees (including without limitation government import, excise, sales, use, and value-added and other taxes or fees). The Software is subject to U.S.A. export control laws and Customer must comply with all applicable export and re-export restrictions, regulations and prohibitions imposed by the United States and of any other governmental authority. Customer shall indemnity TwinStrata, and its officers, directors, employees, shareholders, customers, agents, agents, attorneys, successors and assigns from any breach of this Section 11.