ORKES, INC.

ORKES CONDUCTOR PLAYGROUND EVALUATION AGREEMENT

PLEASE READ THIS ORKES CONDUCTOR PLAYGROUND EVALUATION AGREEMENT (“AGREEMENT”) CAREFULLY. BY USING THE PLAYGROUND (DEFINED BELOW), YOU AND ANY ENTITY YOU REPRESENT (“LICENSEE”) AGREE TO BE BOUND BY THIS AGREEMENT WITH ORKES INC. (“ORKES”). IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT AT ANY TIME, THEN IMMEDIATELY CEASE ALL USE THE PLAYGROUND.

This Agreement governs Licensee’s use of the Orkes Conductor software hosted by Orkes in a sandbox environment, as may be updated by Orkes in its sole discretion from time to time (“The Playground”).

1. License Grant and Intellectual Property Rights
   1. License. Subject to the terms and conditions of this Agreement, including, without limitation, Section 1.2 (License Restrictions) and Section 1.3 (Prohibited Use), Orkes grants Licensee a non-exclusive, non-transferable, non-assignable, non-sublicensable and limited license to use The Playground in accordance with any documentation provided by Orkes and solely for Licensee’s internal evaluation of the Orkes Conductor software hosted on The Playground.
   2. License Restrictions. The licenses to Licensee hereunder are conditioned on Licensee’s compliance with, and Licensee agrees to, the following:
      1. Licensee shall not use The Playground for any production or commercial purposes, including, but not limited to running any production or commercial data processing workloads on The Playground.
      2. Licensee shall not disclose or otherwise share with any third party performance, benchmarking or other data regarding use of The Playground.
      3. Licensee shall not sublicense, distribute, disclose, market, rent, lease, assign or otherwise transfer The Playground to any third party, including through any remote access. Any attempted transfer is void.
      4. Licensee shall not modify, alter, adapt, translate, reverse-engineer, decompile, disassemble or attempt to discover the source code, underlying ideas, algorithms, file formats or programming interfaces of The Playground, documentation, or any portion thereof in any way.
      5. Licensee shall not, either directly or indirectly, access or otherwise make accessible The Playground in violation of the laws of the United States or other applicable jurisdictions.
      6. Licensee shall use The Playground only in accordance with the respective documentation and shall not circumvent any security or restrictions in The Playground.
   3. Prohibited Use. Licensee agrees not to use, facilitate or allow any third party to use The Playground:
      • for any illegal or fraudulent activity;
      • to violate the rights of others;
      • to threaten, incite, promote, or actively encourage violence, terrorism, or other serious harm;
      • for any content or activity that promotes child sexual exploitation or abuse;
      • to violate the security, integrity, or availability of any user, network, computer or communications system, software application, or network or computing device; or
      • to distribute, publish, send, or facilitate the sending of unsolicited mass email or other messages, promotions, advertising, or solicitations.
      Orkes may investigate any suspected violation of this Section 1.3 (Prohibited Use), and remove or disable access to any materials in violation of this Section 1.3 (Prohibited Use). Orkes reserves the right, in its sole discretion, to immediately terminate this Agreement and Licensee’s access to The Playground upon Orkes’ discovery of Licensee’s violation of this Section 1.3 (Prohibited Use), as determined by Orkes in its sole discretion.
   4. Reservation of Rights. Orkes reserves all rights not expressly granted in this Section 1 (License Grant and Intellectual Property Rights). No rights are granted whatsoever by implication.
   5. Ownership by Orkes; Feedback. Orkes owns The Playground and retains all intellectual property rights covering or embodied in The Playground and any improvements to The Playground. Licensee grants Orkes an unlimited, world-wide, non-exclusive, fully-paid-up, royalty-free, transferable, sublicensable, perpetual, irrevocable, non-terminable license to make, use, sell, offer for sale, import, reproduce, modify, incorporate into any product, distribute in any medium now or hereafter discovered and otherwise exploit without restriction any feedback, suggestions, ideas, improvements or the like that Licensee makes or provides regarding The Playground.
   6. Usage and Performance Data. Orkes may use and process data about Licensee’s use of The Playground for the purposes of creating statistics and analytics data. Orkes may use such data for its own business purposes, including to maintain, improve and market the Orkes Conductor software and any other Orkes services or products. Licensee acknowledges that certain features of The Playground are configured to collect and report telemetry data to Orkes.
   7. Marketing Materials. As a condition to accessing and using The Playground, Licensee agrees to provide certain identifying information to Orkes (e.g., name and email address). Licensee acknowledges and agrees that Orkes may use such identifying information provided by Licensee to market Orkes products and services to Licensee.
   8. Support and Maintenance. Orkes is not obligated to provide maintenance and support services for The Playground. In the event that Orkes, in its sole discretion, elects to make available to Licensee any updates or maintenance releases of the Playground, such updates or maintenance releases shall be deemed as The Playground under this Agreement.
   9. Confidential Information. The non-public aspects of The Playground, including, but not limited to, any source code of The Playground, Licensee’s evaluation of The Playground and the results of such evaluation, are Orkes’ confidential information. Licensee agrees to maintain the confidentiality of Orkes’ confidential information and not use, provide access to or disclose such confidential information to any third party.
   10. Third Party Software. The Playground may use or rely on software that is subject to open source or commercial license terms (“Third Party Software”). Any Third Party Software Orkes provides to Licensee is for convenience only, and is not subject to any warranties or obligations by Orkes. Licensee is solely responsible for procuring and complying with any necessary license rights if it chooses to use any Third Party Software.
   11. No Other Rights. All intellectual property rights of Orkes not expressly granted to Licensee in this Agreement are expressly reserved by Orkes. Without limitation, Licensee receives no right or license, by implication, estoppel or otherwise, to any software, technology or intellectual property rights not embodied in The Playground, even if such other software, technology or intellectual property rights are useful or necessary in connection with The Playground.
2. Disclaimer of Warranties. THE PLAYGROUND IS PROVIDED TO LICENSEE “AS IS,” AND ORKES DISCLAIMS ANY WARRANTY OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY WITH REGARD TO PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. ORKES MAKES NO REPRESENTATION AS TO THE AVAILABILITY OF THE PLAYGROUND OR TO THE NATURE, SUITABILITY OR INTEGRITY OF ANY DATA OR MATERIALS UPLOADED TO THE PLAYGROUND. ORKES UNDERTAKES NO SUPPORT OR MAINTENANCE OBLIGATIONS WHATSOEVER WITH RESPECT TO THE PLAYGROUND.
3. Limitation of Liability.
   1. Limitation of Liability. ORKES SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION, RELATING TO THIS AGREEMENT OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE PLAYGROUND, REGARDLESS OF WHETHER ORKES WAS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING. IN NO EVENT SHALL THE TOTAL COLLECTIVE LIABILITY OF ORKES FOR ALL CLAIMS HEREUNDER OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE PLAYGROUND EXCEED ONE HUNDRED US DOLLARS ($100).
   2. Allocation of Risk. The warranty disclaimer and limitations of liability set forth in this Agreement shall apply irrespective of any failure of the essential purpose of any limited remedy. Licensee and Orkes each acknowledge and agree that the limitation of liability provisions of this Agreement reflect an informed, voluntary allocation between them of the risk associated with the exercise of Licensee’s rights regarding The Playground and, but for these provisions, Orkes would not have made The Playground available to Licensee under the terms contemplated under this Agreement.
   3. Applicable Law. The warranty disclaimer and limitations of liability set forth in this Agreement shall not apply to the extent prohibited by law, in which case the disclaimer or limitation shall be modified to disclaim and/or limit in accordance with applicable law. Without limiting the foregoing, to the extent required by law, the foregoing limitations shall not apply to claims due to fraud, bodily injury or death.
4. Term and Termination. Unless terminated earlier as set forth below, this Agreement shall continue for so long as Orkes makes The Playground available to Licensee. Orkes may terminate this Agreement for convenience immediately upon written notice to Licensee. Licensee may terminate this Agreement for convenience immediately upon ceasing all use of and access to The Playground. If this Agreement is terminated for any reason, all rights granted hereunder to Licensee shall terminate. The provisions of Sections 1.2 (License Restrictions), 1.3 (Prohibited Use), 1.4 (Reservation of Rights), 1.5 (Ownership by Orkes; Feedback), 1.7 (Confidential Information), 2 (Disclaimer of Warranties), 3 (Limitation of Liability), 4 (Term and Termination) and 5 (Miscellaneous) shall survive termination of this Agreement.
5. Miscellaneous.
   1. Assignment, Successors. No right or license under this Agreement may be assigned or transferred by Licensee. Orkes may transfer or assign this Agreement to any affiliate, to any successor entity, or to an acquirer of all or substantially all of the business, stock or assets of Orkes relevant to this Agreement. Any assignment, transfer or delegation in contradiction of this provision will be null and void. This Agreement will bind and inure to the benefit of the successors and assigns of Orkes.
   2. Force Majeure. Notwithstanding any other provision of this Agreement, Orkes will not be deemed in default or breach of this Agreement or liable for any loss or damages or for any delay or failure in performance due to any cause beyond the reasonable control of Orkes.
   3. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, USA and the laws of the United States applicable therein without reference to conflict of law or choice of law principles that would cause the application of laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sales of Goods shall not apply to this Agreement. Those who choose to access The Playground from outside of California do so on their own initiative and are responsible for compliance with local laws if and to the extent local laws are applicable.
   4. Jurisdiction and Venue. Licensee agrees to the exclusive jurisdiction and venue of the state and federal courts located in Santa Clara County, California for any and all disputes, controversies or claims arising under, relating to or in connection with this Agreement, in any manner whatsoever, whether in contract, tort, under statute or otherwise, and including any dispute regarding the existence, validity or enforceability of the this Agreement.
   5. Statute of Limitations. Regardless of applicable law to the contrary or the applicable dispute resolution process, any claim or cause of action arising out of or related to use of The Platform or under this Agreement must be filed within one (1) year after such claim or cause of action arose.
   6. Commercial Item Software. Any use, modification, reproduction, release, performance, display or disclosure of the Platform by the U.S. or other government shall be governed solely by this Agreement and shall be prohibited except to the extent expressly permitted by this Agreement.
   7. Independent Contractors. This Agreement does not create a partnership or joint venture between the Parties.
   8. Entire Agreement; Amendments. This Agreement constitutes the entire agreement between Orkes and Licensee with respect to the subject matter hereof.
   9. Waiver. Orkes will not be treated as having waived any rights by not exercising or delaying the exercise of any of its right under this Agreement.