BUNGEE LABS COMMUNITY SOURCE LICENSE — COMMERCIAL USE

FOR BUNGEE APPLICATION SERVER and BUNGEE PULSE CLIENT

(BCSL Commercial)

Draft Version 0.7 (Rev Date: April 22, 2008)

This Bungee Labs Community Source License — Commercial Use for the Bungee Application Server and the Bungee Pulse Client (this "BCSL — Commercial" or "Agreement") is entered into between Bungee Labs, Inc. ("BL") and the person or entity listed in the signature block to this Agreement ("Licensee"). This Agreement will be effective as of the last date signed by Licensee and BL.

RECITALS:

BL owns and distributes software products known as the Bungee Application Server and the Bungee Pulse Client (collectively or separately, "Bungee Run-Time Code", each as more precisely defined below);

BL has made the Source Code of the Bungee Run-Time Code available to Licensee under the terms of the Bungee Labs Community Source License — Research and Development (the "BCSL R&D," as more precisely defined below), which license agreement makes available certain license rights to use the Bungee Application Server and Bungee Pulse Client for research and development purposes only. To the extent that Licensee has not already entered into the BCSL R&D with BL, the terms and conditions of the BCSL R&D are hereby incorporated into this Agreement by reference, and any capitalized term used but not defined in this Agreement will have the same meaning ascribed to such term in the BCSL R&D. Any term defined in both this Agreement and the BCSL R&D shall have the meaning set forth herein for purposes of this Agreement;

Licensee now desires to receive from BL, and BL desires to grant to Licensee, the right to use and distribute the Bungee Application Server and Bungee Pulse Client, or the combination of both, for commercial use, either on a standalone basis or in connection with Licensee Products (as more precisely defined below);

In consideration for the mutual promises and covenants contained herein, the parties agree as follows:

1. Definitions.

The following terms, when capitalized herein, will have the following meanings.

"Applicable Patent Claims" means: (a) in the case where BL is the grantor of rights, claims of patents that (i) are now or hereafter acquired, owned by or assigned to BL and (ii) are necessarily infringed by using or making the Bungee Run-Time Code, including Modifications provided by BL, alone and not in combination with other software or hardware other than an Intended Combination for Bungee Run-Time Code; and (b) in the case where Licensee is the grantor of rights, claims of patents that (i) are now or hereafter acquired, owned by or assigned to Licensee and (ii) are infringed (directly or indirectly) by using or making Licensee Modifications, taken alone or in an Intended Combination for Licensee Modifications.

"Application Programming Interfaces (APIs)" means the interfaces, associated header files, service provider interfaces, and protocols that enable a device, application, operating system, or other program to obtain services from or make requests of (or provide services in response to requests from) other programs, and to use, benefit from, or rely on the resources, facilities, and capabilities of the relevant programs using the APIs. APIs includes the technical documentation describing the APIs, the Source Code constituting the API, and any Header Files used with the APIs.

"BCSL R&D" means the Bungee Labs Community Source License — Research and Development, posted at http://www.bungeeconnect.com/about/legal/legal.html.

"Bungee Connect Product Family" means BL's commercially deployed and available then-current system for the development and delivery of rich internet application over Internet Protocol enabled networks, which as of the Effective Date includes the Bungee Connect deployed at https://builder.bungeeconnect.com/

"Bungee Labs Community Website" means the website located at http://bcdn.bungeeconnect.com/ designated by BL for access to the Bungee Run-Time Code, TCK and Specifications, and for posting Modifications.

"Bungee Labs Licensee" means any person or entity who has entered into a license agreement with BL providing for both source code development rights to and Commercial Use of the Bungee Run-Time Code.

"Bungee Pulse Client" means the software identified on the Bungee Labs Community Website as the "Bungee Pulse Client," exclusive of any Third Party Software, and which implements interaction, user interface rendering, and display within a web browser as defined in the Specification.

"Bungee Application Server" means the software identified on the Bungee Labs Community Website as the "Bungee Application Server," exclusive of any Third Party Software, and which implements the application delivery as defined in the Specification.

"Bungee Run-Time Technology Compatibility Kit" or "TCK" means the interoperability testing specification, documentation and related testing tools made available to Licensee by BL from time to time for the purpose of testing Licensee's implementations of the Bungee Run-Time Code against the Bungee Connect Product Family. A TCK may include interoperability specifications for functionality beyond Bungee Pulse Client, but only for the shared functionality between the applicable Unit and the then-current commercially available versions of the Bungee Connect Product Family.

"End User" means a direct or indirect user of Licensed Product from Licensee, licensed to use any portion of the Bungee Run-Time Code for such End User's own use, but not for resale, distribution, or use on behalf of any third party.

"End User License Agreement" or "EULA" means an appropriate end user license agreement to be included with each copy of the Bungee Run-Time Code provided to End Users via a Licensee Product.

"Error Correction" means any change made to Bungee Run-Time Code which conforms to the Specification and corrects the adverse effect of a failure of Bungee Run-Time Code to perform any function set forth in or required by the Specifications

"Essential Patent Claim" means any claim of a patent that (i) is available for license on reasonable and non-discriminatory terms; and (ii) would be necessarily and unavoidably infringed (in the absence of a license) by the practice of any codec or file format standard. For purposes of clarity, a claim of a patent that is an "Essential Patent Claim" when it is practiced by a codec or file format standard shall not be considered an "Essential Patent Claim" in those circumstances where it is practiced by a non-standard codec or file format.

"Executable" means any software that has been converted from Source Code to the preferred form for execution by a computer or digital processor (e.g. binary or directly interpretable form).

"Extension(s)" means any additional Interfaces developed by or for Licensee which:  (i) are designed for use with the Bungee Run-Time Code; (ii) constitute an API for a library of computing functions or services; and (iii) are disclosed or otherwise made available to third party software developers for the purpose of developing software which invokes such additional Interfaces.  The foregoing shall not apply to software developed by Licensee's subcontractors to be exclusively used by Licensee.

"Header File(s)" means that portion of the Source Code that provides the names and types of member functions, data members, class definitions, and interface definitions necessary to implement the APIs for the Bungee Run-Time Code. Header Files include, files specifically designated by BL as Header Files. Header Files do not include the code necessary to implement the functionality underlying the Interface.

"Intellectual Property Rights" means worldwide statutory and common law rights associated solely with (i) Applicable Patent Claims; (ii) works of authorship including copyrights, copyright applications, copyright registrations and "moral rights"; (iii) the protection of trade and industrial secrets and confidential information; and (iv) divisions, continuations, renewals, and re-issuances of the foregoing now existing or acquired in the future.

"Intended Combination for Bungee Run-Time Code" means, with respect to any specific version of Bungee Run-Time Code, the combination of such version of the Bungee Run-Time Code in the form provided by BL and either one or both of the following: (i) the hardware parts of a PC or Non-PC Device to the extent necessary for the Bungee Run-Time Code to run on the PC or Non-PC Device; and (ii) those parts of an operating system to the extent necessary for the Bungee Run-Time Code to run on the PC or Non-PC Device.

"Intended Combination for Licensee Modifications" means, with respect to any specific Licensee Modification, the combination of such specific Licensee Modification, in the form provided by Licensee, and any combination of one or more of the following three items: (i) the Bungee Run-Time Code; (ii) the hardware parts of a PC or Non-PC Device to the extent necessary for the Licensee Modification to run on the PC or Non-PC Device; or (iii) those parts of a software operating system to the extent necessary for the Licensee Modification to run on the PC or Non-PC Device.

"Interface" means any interface, function, property, class definition, API, Header File, GUID, V-Table, or protocol that allows one piece of software, firmware or hardware to communicate or interoperate with another piece of software, firmware or hardware.

"Licensee Modification" means a Modification made by Licensee.

"Licensee Product" means Licensee's web-site, on-demand service, software, or hardware product with which Licensee intends to combine the Bungee Run-Time Code, as specified in Attachment A.

"Modification(s)" means (i) any addition to, deletion from or change to the substance or structure of the Bungee Run-Time Code, including Interfaces; (ii) any new file or other representation of computer program statements that contains any portion of the Bungee Run-Time Code; (iii) any new Source Code implementing any portion of the Specifications; or (iv) any derivative work of the Bungee Run-Time Code or any portion thereof, with the exception of any Extension.

"Non-PC Device" means any device that is not a PC and that is capable of running the Bungee Run-Time Code .

"PC" means any multi-functional, general purpose personal computer or workstation, desktop tower, laptop or mini-laptop with qwerty keyboard and mouse functionality as the primary user input method, operating on an operating systems such as Microsoft Windows, Apple MacOS, or Desktop Linux.

"Source Code" means the preferred form of software for making modifications to it, including all modules it contains, plus any associated interface definition files, scripts used to control compilation and installation of an Executable.

"Specifications" means the specifications for the Bungee Run-Time Code and other documentation, as published by BL from time to time on the Bungee Labs Community Website.

"Third Party Software" means software licensed or sublicensed from third parties by BL and identified at Attachment B. Third Party Software is explicitly excluded from the definition of Bungee Run-Time Code under this Agreement.

"Unit" means the combination of any portion of the Bungee Run-Time Code with a Licensee Product.

"Upgrade(s)" means updates to or new versions of the Bungee Run-Time Code designated by BL as an "Upgrade" and released by BL to Licensee from time to time under the terms of this Agreement.

2. License to Modify and Integrate.

2.1 License to Modify the Bungee Run-Time Code. Subject to Licensee's compliance with the terms of this Agreement, BL grants to Licensee a worldwide, royalty-free, non-exclusive license, to the extent of BL's Intellectual Property Rights covering the Bungee Run-Time Code, to use the Source Code of the Bungee Run-Time Code to create Licensee Modifications and Error Corrections.

2.2 Integration License. Subject to Licensee's compliance with the terms of this Agreement, BL grants to Licensee a limited, non-exclusive, royalty-free, non-transferable license to integrate the Bungee Run-Time Code with Licensee Products to create Units.

2.3 Scope of License Rights. The license rights granted under this Section 2 include a license under all of BL's Intellectual Property Rights, except that the scope of licenses under BL's patents are limited as follows:

2.3.1 No License to Essential Patent Claims. Notwithstanding anything to the contrary in this Agreement, the license rights set forth herein do not include a license under any Essential Patent Claims of BL.

2.3.2 No Patent License Beyond Intended Combinations. The patent license rights set forth in this Section 2 are limited to a license under Applicable Patent Claims of BL, when using and distributing the Bungee Run-Time Code either standing alone or as part of an Intended Combination for Bungee Run-Time Code.

2.4 Third Party Software. The Bungee Run-Time Code is accompanied by software distributed or authored by third parties and made available to you under the terms and conditions set forth at Attachment B to this Agreement. Your use of any Third Party Software is subject to and governed solely by the applicable terms and conditions set forth or identified in Attachment B, and this Agreement does not apply to such use in any way. For the avoidance of doubt, and without limiting the foregoing, the Third Party Software is provided "as-is" and BL expressly disclaims any and all warranties, representations, and liability in connection therewith.

3. Development Requirements and Responsibilities.

3.1 Delivery of Bungee Run-Time Code and Licensee Modifications. BL will make the Source Code of Bungee Run-Time Code available to Licensee via the Bungee Labs Community Website. Licensee will deliver to BL in Source Code form all Licensee Modifications and Error Corrections via the Bungee Labs Community Website, together with a file documenting the Modifications and Error Corrections and the date of such modifications.

3.2 Modifications. Licensee must include a proprietary notice in the header of any file containing a Licensee Modification in the format designated on the Bungee Labs Community Website. Licensee may not limit or subset the functionality of the Bungee Run-Time Code, either technically or in any documentation or marketing literature.

3.3 Source Code Restrictions. Licensee shall treat the Source Code of the Bungee Run-Time Code with the same degree of care and safeguards that Licensee takes with Licensee's own trade secrets, but in no event less than a reasonable degree of care.

3.4 Restrictions Related to Licensee Interfaces.

3.4.1 Licensee may not include the Source Code of Bungee Run-Time Code in any Licensee Interface, except that Licensee may include the compiled Header Files of Bungee Run-Time Code in a Licensee Interface.

3.4.2 Publication. No later than the date on which Licensee first distributes a Licensee Interface for Commercial Use, Licensee must publish to the industry, on a non-confidential basis and free of all copyright restrictions with respect to reproduction and use, an accurate and current specification for such Licensee Interface. In addition, Licensee must make available an appropriate test suite, pursuant to the same rights as the specification, sufficiently detailed to allow any third party reasonably skilled in the technology to produce implementations of the Licensee Interface compatible with the specification. Such test suites must be made available as soon as reasonably practicable but, in no event, later than ninety (90) days after Licensee's first commercial use of the Licensee Interface. Licensee must use reasonable efforts to promptly clarify and correct the specification and the test suite upon written request by BL.

3.4.3 Open. Licensee covenants that it will refrain from enforcing any patent claims Licensee has or may have covering specification of any Licensee Interface, which Intellectual Property Rights would be necessarily and unavoidably infringed by the compliant implementation of such specification for the Licensee Interface by BL or any of Bungee Labs Licensees provided that BL or any of Bungee Labs Licensees are not suing, claiming or asserting against Licensee or its Affiliates for infringement of BL's or such Bungee Labs Licensees' Intellectual Property Rights. This obligation does not prevent Licensee from enforcing any Intellectual Property Right Licensee has covering any portion beyond the Licensee Interface implementation or that would otherwise be infringed by an implementation of any Licensee Interface.

3.5 Circumvention of Technological Protection Measures. Licensee may not use the Bungee Run-Time Code or any portion thereof in an attempt to, or in conjunction with any device, program or service designed to, circumvent technological measures employed to control access to, or the rights in, a web service, data base, content or other work protected by user authentication mechanisms, user authorization mechanisms, or copyright laws of any jurisdiction.

3.6 Patents. Licensee agrees not to use any information derived from Licensee's use or review of the Bungee Run-Time Code, including but not limited to any algorithms or inventions that may be contained in the Source Code for the Bungee Run-Time Code, for the purpose of asserting any Licensee patent rights, or assisting a third party to assert any of its patent rights, against BL or any licensee of the Bungee Run-Time Code.

4. Use and Distribution Licenses.

4.1 Use of Bungee Run-Time Code by Person or Entity. Subject to Licensee's payment of the per-Unit royalty fees set forth in Attachment A and Licensee's compliance with the testing requirements of Section 7, BL grants Licensee a non-exclusive, non-transferable, worldwide license during the Term to operate and use the number of Bungee Application Servers for which a royalty fee has been paid, to make available or deliver Licensee Product to End Users via the Internet, provided that such Licensee Product is a web-site or web-based application service and no portion of the Bungee Application Server is distributed in connection with such service.

4.2 Distribution of Bungee Pulse Client to End Users. Subject to Licensee's payment of the royalty fees set forth in Attachment A and the testing requirements of Section 7, BL grants Licensee a non-exclusive, non-transferable, worldwide license during the Term to reproduce and distribute the Bungee Pulse Client to End Users and the Bungee Application Server solely in connection with Licensee's delivery of a Licensee Product under Section 4.1, to End Users via the Internet or over-the-air software distribution.

4.3 Distribution of Bungee Run-Time Code. Subject to Licensee's payment of the per-Unit royalty fees set forth in Attachment A and, to the extent that any Modifications are made by Licensee, Licensee's compliance with the testing requirements of Section 7, BL grants Licensee a non-exclusive, non-transferable, worldwide license during the Term to distribute to End Users the number of Units for which royalty fees have been paid.

4.4 Restrictions.

4.4.1 Licensee must distribute or make available the Licensed Product under the terms of an appropriate EULA which Licensee must ensure will be made available to the End User prior to using the Licensed Product, and that the End User will be required to consent to the terms of the EULA prior to using the Licensed Product. The terms of the EULA may be at Licensee's choosing provided that it contains at least the following minimum terms:

4.4.1.1 The EULA must prohibit the End User from modifying, translating, reverse engineering, decompiling, disassembling or using other means to discover the Source Code or otherwise replicate the functionality of the Bungee Run-Time Code, except to the extent that this restriction is expressly prohibited by applicable law.

4.4.1.2 The EULA must effectively disclaim on behalf of BL all warranties and conditions other than those set forth in this Agreement, express and implied, including implied warranties or conditions of merchantability and fitness for a particular purpose; and effectively exclude all liability for indirect, special, incidental and consequential damages, such as lost profits.

4.4.2 Licensee may use, manufacture and have manufactured, import and have imported (subject to applicable export laws), reproduce and have reproduced, and embed or have embedded into Licensee Products the Bungee Run-Time Code. Licensee may use subcontractors to exercise its license rights hereunder, including the manufacture or reproduction of the Units, under the terms of this Agreement, provided the subcontractor has entered into an agreement with Licensee with confidentiality and intellectual property ownership clauses sufficient to permit Licensee to fulfill its obligations hereunder.

4.5 Other Code. If Licensee combines the Bungee Run-Time Code with any code not proprietary to BL, including the Third Party Code, Licensee will be responsible for obtaining and adhering to appropriate license obligations from the appropriate licensors of Intellectual Property Rights for such code

5. Ownership; Reservation of Rights.

5.1 Bungee Run-Time Code. As between BL and Licensee, BL is the owner of all Intellectual Property Rights in the Bungee Run-Time Code and any portion thereof. All rights not specifically granted herein to Licensee are reserved to BL.

5.2 Licensee Products. As between BL and Licensee, Licensee is the owner of all Intellectual Property Rights in the Licensee Products. No rights to the Licensee Products are granted to BL hereunder.

5.3 Licensee Modifications. Except as set forth in Section 5.4, Licensee is the owner of all Intellectual Property Rights in any Licensee Modifications, subject to BL's rights in the Bungee Run-Time Code.

5.4 License. Subject to Section 5.5, Licensee grants to BL a non-exclusive, perpetual, royalty-free, sublicensable, worldwide, revocable (as set forth in Section 6) license to use, modify, publicly perform, create derivative works, and distribute any Licensee Modifications.

5.5 Limitations of Patent Licenses. The following limitations apply to Licensee's patent licenses granted under Section 5.4.

5.5.1 No Patent Rights to Essential Claims. Notwithstanding anything to the contrary in this Agreement, the license rights set forth herein do not include a license under any Essential Patent Claims of Licensee.

5.5.2 No Patent License Beyond Intended Combinations. The patent license rights set forth herein are solely limited to Licensee's Applicable Patent Claims to use and distribute Licensee Modification either standing alone or as part of the Intended Combination for Licensee Modifications.

5.6 Reservation of Rights. There are no implied licenses granted under this Agreement. All BL's rights, save for those expressly granted to Licensee hereunder, shall remain with BL. All Licensee's rights, save for those expressly granted to BL hereunder, shall remain with Licensee. Except as expressly provided herein, or to the extent expressly allowed by law, Licensee shall not modify, reproduce, display, decompile, reverse engineer, store, sell, sublicense, lease or otherwise transfer or distribute the Bungee Run-Time Code, in whole or in part.

6. Right to Revoke Patent Licenses.

6.1 Licensee's Right to Revoke Patent Licenses of Other Bungee Labs Licensees. Licensee may, upon a notice in writing to BL, revoke its patent licenses granted under this Agreement with respect to any specific Bungee Labs Licensee if such Bungee Labs Licensee asserts a Related Patent Claim covering Licensee Products against Licensee, its Affiliates, customers, licensees or contractors. For purposes of this Section 6, a Related Patent Claim is a patent claim that relates to (i) the Bungee Run-Time Code or any Licensee Modification; or (ii) the functionality of web browser user interface and graphical rendering and interactivity, whether such functionality is provided by software, hardware or combination between software and hardware. Upon receipt of a notice of revocation from Licensee, BL shall promptly serve notice of revocation of Licensee's patent rights upon the applicable Bungee Labs Licensee, and the revocation of the license shall apply from the date of BL's notice to such Bungee Labs Licensee.

6.2 Licensee's Right to Revoke Patent Licenses to BL. Licensee may, upon notice to BL, revoke its patent licenses granted under this Agreement with respect to BL if BL asserts a Related Patent Claim covering Licensee's Products against Licensee, its Affiliates, customers, licensees or contractors. Any such revocation shall apply from the date of BL's receipt of such notice from Licensee and shall be effective only against BL and any future Bungee Labs Licensees but shall not affect the rights of any existing Bungee Labs Licensees who have taken a license from BL to the applicable Modifications.

6.3 The Right of Other Bungee Labs Licensees to Revoke Patent Licenses of Licensee. Any Bungee Labs Licensee may, upon notice to BL, revoke its patent licenses governing any Modifications submitted by such Bungee Labs Licensee with respect to Licensee if Licensee asserts any Related Patent Claim covering any products of such Bungee Labs Licensee against such Bungee Labs Licensee, its Affiliates, customers, licensees or contractors. Such revocation shall be effective against Licensee upon BL's notice to Licensee of such revocation.

6.4 BL's Right to Revoke Patent Licenses to Licensee. BL may, upon notice to Licensee, revoke its patent licenses granted hereunder if Licensee asserts any Related Patent Claim covering any products of BL against BL, its Affiliates, customers, licensees or contractors. Such revocation shall be effective upon BL's notice to Licensee of such revocation.

6.5 Requirements. A party's right to revoke patent licenses under this Section 6 is effective only if: (i) such party has clearly marked Modifications with its proprietary notice in the appropriate header file (as required, in the case of Licensee, by Section 3.2 hereunder); and (ii) the notice of revocation to the other party specifically identifies the patent number, grant number, publication number, or other uniquely identifying indicia of the relevant patent.

7. Testing.

7.1 Testing. Prior to distributing any combination of Bungee Run-Time Code and a Licensee Product as a Unit, Licensee will test the Unit to ensure that the Bungee Run-Time Code as integrated with the Licensee Product performs satisfactorily as part of a Unit and meets the testing criteria set forth in the applicable, then-current TCK.

7.2 Third Party Testing. In the event that BL discovers that Licensee has distributed Units that do not pass the TCK, BL will so notify Licensee and Licensee shall immediately take corrective action. In addition, BL may require that future testing to be conducted under this Section 7.1 will be conducted by a third party agreeable to both BL and Licensee at Licensee's expense.

8. Upgrades.

8.1 Upgrades. The license rights granted hereunder shall include any Upgrades to the Bungee Run-Time Code issued by BL to Licensee during the Term.

8.2 Upgrades with New Functionality. In the event that an Upgrade of Bungee Run-Time Code contains new functionality, BL may offer such Upgrade with amended license terms provided that such new license terms (i) are limited to the new functionality and (ii) are generally required of every Bungee Labs Licensee to obtain license rights to the applicable Upgrade. Licensee can elect to accept or reject such Upgrade and associated new license terms.

8.3 Use of Upgrades. After BL makes available to Licensee any Upgrade to either the Bungee Run-Time Code, Licensee shall use its best efforts to promptly include such Upgrade in the next new release of Units, but in no event later than three (3) months following general availability of such Upgrade from BL to the Bungee Labs Community Website, or twelve (12) months following general availability of such Upgrade from BL to the Bungee Labs Community Website for any Units that are hardware based. Thereafter, Licensee shall cease creation of Units using prior versions of the Bungee Run-Time Code, as applicable.

9. Support.

9.1 End User Support. As between BL and Licensee, Licensee is responsible for providing technical and maintenance support services for Units to End Users and to any potential Unit purchaser authorized under Section 4.2.

9.2 Licensee Support. Licensee may enter into a fee-based developer support agreement for direct private support directly from BL. Licensee may obtain free, public information relating to support of Bungee Run-Time Code from the Bungee Labs Community Website.

10. Representations and Warranty.

10.1 BL represents and warrants to Licensee that, to the best of BL's knowledge, and except as set forth in Section 4.3, the Bungee Run-Time Code and each portion thereof is either owned or properly licensed by BL or are in the public domain and the use thereof by Licensee does not and will not infringe any proprietary rights of any third party. BL does not warrant that Licensee's use of the Bungee Run-Time Code will be uninterrupted or that the operation of the Bungee Run-Time Code will be error-free or secure.

10.2 BL represents and warrants to Licensee that the Bungee Run-Time Code will (i) perform in accordance with the applicable published or mutually agreed upon specifications and related documentation provided by BL, and (ii) be free from defects in materials.

10.3 Unless otherwise authorized in writing by BL to do so, Licensee shall make no representations or warranties concerning the Bungee Run-Time Code that are inconsistent with representations contained in the Documentation. Licensee will, at its expense, indemnify and hold BL harmless from and against any claims based on unauthorized representations or warranties made by Licensee concerning the Bungee Run-Time Code or the Unit.

10.4 Licensee warrants that Licensee has the full right and authority to enter into this Agreement and grant to BL the license rights granted herein.

10.5 EXCEPT AS SPECIFICALLY SET FORTH ABOVE, NEITHER PARTY MAKES ANY WARRANTIES, AND BOTH PARTIES HEREBY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE OR PURPOSE.

11. Use of BL's Trademarks.

11.1 BL Marks. Licensee acknowledges that "Bungee Connect" "Bungee Pulse"and other marks and associated logos used by BL with the Bungee Run-Time Code (collectively, the "BL Marks") are trademarks of BL. BL hereby grants to Licensee a non-exclusive, nontransferable license to use the BL Marks solely in connection with Licensee's marketing and distribution of Units. Licensee shall only use the BL Marks in the form and manner set forth in BL's Trademark Usage Guidelines found at http://www.bungeeconnect.com/about/presscenter/logos.html . If BL makes any changes to such Trademark Usage Guidelines or the BL Marks, BL will provide reasonable prior notice to Licensee for Licensee to distribute existing versions of the prior BL Marks as used in Licensee Product packaging, provided, however, that the parties must mutually agree upon any changes which would materially and adversely change Licensee's use of the BL Marks. Any instance of use of any BL Mark shall be subject to review by BL upon reasonable request and BL may, at its option and sole discretion, refuse any use of the BL Marks deemed by BL to be damaging, improper, or otherwise deleterious to its trademark rights. Licensee's use of any BL Mark in connection with this Agreement shall not create any right, title or interest, in or to the use of the BL Marks and all such use and goodwill associated with the BL Marks will inure to the sole and exclusive benefit of BL.

11.2 Proprietary Notices. Except as set forth in Section 3.2, Licensee and its employees and agents shall not remove or alter any proper trademark, copyright, or other proprietary notices on or in copies of the Bungee Run-Time Code or Documentation, or any portion thereof. In addition, Licensee shall place a notice in documentation for any Unit, or where otherwise agreed upon by the parties, which reads: "Portions of this software are included under license from Bungee Labs, Inc. Copyright 2007, 2008, Bungee Labs, Inc. All rights reserved."

12. Marketing.

12.1 Press Releases. Licensee may not make press announcements or other public statements regarding this License without the prior written consent of BL. Consent requests are welcome at [email protected].

12.2 Membership in Bungee Labs Community. Licensee hereby grants BL a non-exclusive, non-transferable, limited license to use Licensee's company name and logo ("Licensee Marks") in any presentations, press releases, or marketing materials solely for the purpose of identifying Licensee as a member of the Bungee Labs Community. Licensee shall provide samples of Licensee Marks to BL upon request. BL acknowledges that the Licensee Marks are the trademarks of Licensee. BL shall not use the Licensee Marks in a way that may imply that BL is an agency or branch of Licensee. BL understands and agrees that the use of any Licensee Marks in connection with this Agreement shall not create any right, title or interest, in, or to the Licensee Marks or any Licensee trademarks and that all such use and goodwill associated with any such trademarks will inure to the benefit of Licensee.

12.3 In all marketing materials relating to any Licensee Product, Licensee must attribute to the Bungee Run-Time Code any functionality provided by the Bungee Run-Time Code.

13. Term and Termination.

13.1 Term. The term of this Agreement (the "Term") shall commence on the Effective Date and shall continue for an initial term of two (2) years.

13.2 Termination for Cause. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches any provision of this Agreement and fails to cure such breach within thirty (30) days after receiving notice of the breach.

13.3 Other Termination.

13.3.1 Termination by BL for Assertion of Patent Claim Regarding the Bungee Run-Time Code. Notwithstanding anything to the contrary in this Agreement, BL may terminate this Agreement upon thirty (30) days notice to Licensee if Licensee initiates an action against BL or any Bungee Labs Licensee (including by cross-claim or counter claim) alleging that use or distribution by BL or such Bungee Labs Licensee of the Bungee Run-Time Code infringes a patent owned or controlled by Licensee.

13.3.2 Termination for Convenience. Licensee may terminate the Agreement for convenience at any time upon notice to BL.

13.4 Termination for Insolvency. Either party may terminate this Agreement immediately upon notice to the other party should the other party: (i) admit in writing its inability to pay its debts generally as they become due; (ii) make a general assignment for the benefit of its creditors; (iii) institute proceedings to be adjudicated a voluntary bankrupt, or consent to the filing of a petition of bankruptcy against it; (iv) seek reorganization under any bankruptcy act, or consent to the filing of a petition seeking such reorganization; or (v) have a decree entered against it by a court of competent jurisdiction appointing a receiver, liquidator, trustee or assignee in bankruptcy or in insolvency covering all or substantially all of such party's property or providing for the liquidation of such party's property or business affairs, provided that such decree is not vacated within ninety (90) days.

13.5 Effect of Termination or Expiration. Upon termination or expiration of this Agreement, the following rights granted hereunder shall terminate, as follows:

13.5.1 If this Agreement is terminated due to material breach of Licensee or pursuant to Section 13.3.1, Licensee shall immediately discontinue the distribution of Units and will immediately return to BL or destroy any copies of the Bungee Run-Time Code in its possession. Except as otherwise provided herein, any termination of this Agreement shall not release Licensee from paying any amount that Licensee may owe BL hereunder.

13.5.2 If this Agreement is terminated due to any other reason, Licensee's license rights to use and distribute the Bungee Run-Time Code shall terminate, provided that if Licensee is distributing Units that are hardware based, then Licensee shall be entitled to manufacture and distribute Units for a period of one year following the effective date of termination so long as Licensee continues to pay BL royalties for such distribution.

13.5.3 Upon any termination or expiry of this Agreement and subject to Sections 13.5.1 and 13.5.2, Licensee shall cease using the Bungee Run-Time Code provided for above, including without limitation all Source Code, master diskettes and tapes, and user manuals for the Bungee Run-Time Code. Licensee may retain and exploit only such Executable copies of Bungee Run-Time Code as it may reasonably require in providing continued support to its End Users, and will certify that that is the case upon the request of BL.

14. Consideration.

14.1 Royalties. In consideration for the license rights granted by BL hereunder, Licensee shall pay BL royalties in the amount and manner as set forth in Attachment A. Each royalty payment will be accompanied by a report as described in Attachment A.

14.2 Licensee shall pay all taxes, duties, import and export fees, and any other charges or assessments which are applicable to the performance of this Agreement, as it relates to the license rights granted to Licensee hereunder, and shall indemnify and hold BL harmless from any encumbrance, fine, penalty, or other expense which BL may incur as a result of Licensee's failure to pay any such taxes, duties, fees, charges, or assessments (collectively "Taxes"). Such indemnity shall not apply if BL fails to provide Licensee reasonable information reasonably requested by Licensee in writing to BL, and able to be reasonably provided by BL, in order to pay the appropriate amount of Taxes or obtain an exemption for Taxes for which Licensee qualifies, and BL agrees to indemnify and hold Licensee harmless from any encumbrance, fine, penalty, or other expense which Licensee may incur solely as a result of BL's failure provide such reasonable information as reasonably requested by Licensee as specified herein.

14.3 Licensee shall maintain all relevant accounting, manufacturing and shipment records relating to the Units as would be required by generally accepted accounting principals, and to retain such records for at least two (2) years after the expiration or termination of this Agreement. During the Term of this Agreement and for two (2) years thereafter, BL shall have the right, upon ten (10) days' notice, to engage an independent nationally recognized accounting firm to audit any such records of Licensee to ensure compliance with this Agreement during normal business hours. BL may not request an audit more than once a calendar year unless an audit reveals an underreporting of fees due to BL, in which case BL may not request an audit more than once per calendar quarter. The records reviewed for such audit and the results thereof shall be treated by the auditor as Confidential Information of Licensee. If any audit reveals a shortfall, Licensee shall promptly pay to BL such shortfall. If any audit reveals an overpayment, then Licensee shall credit such overpayment against its next payment or fees to BL. If any audit reveals that fees due BL are more than five percent (5%) of amounts remitted to BL, Licensee shall reimburse BL for its audit expenses for such audit.

15. Indemnification.

15.1 By BL.

15.1.1 BL agrees to indemnify, hold harmless, and defend Licensee and its officers, directors, employees, shareholders, customers, agents, successors from and against any and all damages, costs, and expenses, including reasonable attorney's fees, incurred in connection with any third party infringement claim that the Bungee Run-Time Code alone or the use of the Bungee Run-Time Code in the Intended Combination for Bungee Run-Time Code primarily and directly infringes any Intellectual Property Right of any third party (excluding claims described in Section 15.2), provided Licensee promptly notifies BL of the claim and BL has sole control over its defense or settlement, and Licensee provides reasonable assistance in the defense of same at BL's expense. For the avoidance of doubt, BL's indemnity obligation shall be limited to the third party infringement claims where such third party's Intellectual Property Right are infringed only when the relevant Bungee Run-Time Code is present but not in the absence of the relevant Bungee Run-Time Code, as delivered by BL in the unmodified form. BL will have no obligation to indemnify Licensee hereunder for any Essential Patent Claims.

15.1.2 In the event BL receives information concerning an Intellectual Property Infringement claim relating to the Bungee Run-Time Code that would interfere with Licensee's rights hereunder, BL may at its expense, but without obligation to do so: (i) procure for Licensee the right to continue using the allegedly infringing portions of the Bungee Run-Time Code; or (ii) replace or modify the Bungee Run-Time Code to make it non-infringing, and Licensee shall promptly cease use and distribution of the alleged infringing code. In addition to the rights set forth herein, in the event that the Bungee Run-Time Code is reasonably believed in good faith by BL to infringe, and subsections (i) and (ii) above are commercially impracticable, BL may issue a written notice to Licensee instructing Licensee to immediately stop shipment of the affected portions of the Bungee Run-Time Code due to a third party infringement claim. Upon issuance of such written notice by BL to Licensee, Licensee shall promptly cease and desist distributing the Bungee Run-Time Code. BL will not be obligated to indemnify Licensee for Licensee's further distribution of allegedly infringing code that occurs more than two months after (a) BL's provision of non-infringing Bungee Run-Time Code or (b) BL's notice to stop distributing the affected portions of the Bungee Run-Time Code. The foregoing shall not, however, relieve BL from its indemnity obligation with respect to already distributed Units incorporating infringing Bungee Run-Time Code.

15.1.3 This Section states BL's entire liability and Licensee's exclusive remedy for infringement. In no event will BL's obligations under this Section 15 exceed an amount equal to two million dollars.

15.2 By Licensee.

15.2.1 Licensee agrees to indemnify, hold harmless, and defend BL from and against any and all damages, costs and expenses, including reasonable attorney's fees, incurred in connection with any third party infringement claim that any Licensee Modification alone or the use of any Licensee Modification in the Intended Combination for Licensee Modification primarily and directly infringes any Intellectual Property Right of such third party (excluding claims described in Section 15.1), provided BL promptly notifies Licensee of the claim and Licensee has sole control over its defense or settlement, and BL provides reasonable assistance in the defense of same at Licensee's expense. For the avoidance of doubt Licensee's indemnity obligation shall be limited to the third party infringement claim(s) where such third party's Intellectual Property Right is infringed only when the relevant Licensee Modification is present but not in the absence of the relevant Licensee Modification, as delivered by Licensee in the unmodified form. For purposes of clarity, Licensee will have no obligation to indemnify BL hereunder for any Essential Patent Claims.

15.2.2 In the event Licensee receives information concerning an intellectual property infringement claim relating to the Licensee Modification that would interfere with BL's rights hereunder, Licensee may at its expense, but without obligation to do so: (i) procure for BL the right to continue using the allegedly infringing portions of the Licensee Modification; or (ii) replace or modify the Licensee Modification to make it non-infringing, and BL shall promptly cease use and distribution of the alleged infringing code. In addition to the rights set forth herein, in the event that any Licensee Modification is reasonably believed in good faith by Licensee to infringe, and subsections (i) and (ii) above are commercially impracticable, Licensee may issue a written notice to BL instructing BL to immediately stop shipment of the affected portions of the Licensee Modification due to a third party infringement claim. Upon issuance of such written notice by Licensee to BL, BL shall promptly cease and desist distributing the applicable Licensee Modification. Licensee will not be obligated to indemnify BL for BL's further distribution of allegedly infringing code that occurs more than two months after (a) Licensee's provision of a non-infringing replacement Licensee Modification or (b) Licensee's notice to stop distributing the affected portions of the Licensee Modification. The foregoing shall not, however, relieve Licensee from its indemnity obligation with respect to already distributed copies of the infringing Modification.

15.2.3 This Section states Licensee's entire liability and BL's exclusive remedy for infringement. In no event will Licensee's obligations under this Section 15 exceed an amount equal to two million dollars.

16. Confidentiality.

16.1 Confidential Information. "Confidential Information" means any proprietary information or data, either oral or written, exchanged between the parties pursuant to this Agreement and designated as confidential by the disclosing party. It does not, however, include information that: (i) is already known by the recipient, (ii) becomes publicly known through no wrongful act of the recipient, or (iii) is received by the recipient from a third party without similar restriction and without breach of this Agreement. Each party agrees that it shall use the same care to protect against the unauthorized duplication, use, publication or disclosure of any such Confidential Information of the other party as it uses to protect its own proprietary and confidential information, and shall not use or disclose such Confidential Information except in connection with and in furtherance of the purposes of this Agreement, unless authorized in writing by the other party or pursuant to a valid court or administrative order. All materials, including copies and summaries, containing the other party's Confidential Information shall be destroyed or returned to such party, as instructed by such party, by the recipient promptly upon termination of this Agreement.

17. Limitation of Liability.

IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA, OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL BL'S LIABILITY TO LICENSEE HEREUNDER EXCEED THE TOTAL AMOUNT OF FEES PAID BY LICENSEE TO BL HEREUNDER.

18. Assignment and Change of Control.

18.1 Neither party shall assign, transfer, or otherwise dispose of this Agreement, or any rights or obligations hereunder, without the other party's prior written consent, except that no consent shall be required to be obtained in connection with any such assignment, transfer, or other disposition of the Agreement in its entirety that occurs in connection with the sale of all or substantially all of the assets of the assigning party.

18.2 This Agreement shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns.

19. General.

19.1 Independent Contractor. The relationship created by this Agreement is one of independent contractors, and not partners or joint ventures. Nothing in this Agreement shall be interpreted to provide Licensee with any title or other ownership rights in the software and other materials provided by BL.

19.2 Notices. All notices and demands under this Agreement will be in writing and will be delivered by personal service, express courier, or United States mail, to the following addresses:

If to BL, by mail, express courier or personal service:

Bungee Labs, Inc.
625 East Technology Ave, B-2300
Orem, Utah 84097
Attention: General Counsel

If to Licensee, to the address set forth on the first page of this Agreement.

Either party may change the addresses set forth above by written notice to the other party. Notice will be effective on receipt.

19.3 Survival. The following terms of this Agreement shall survive expiration of termination of this Agreement: 1, 3.4.3, 3.5, 3.6, 5, 6, 10.5, 13.5, and 14 — 19. Furthermore, in the event of any termination or expiration of this Agreement, all End User licenses shall remain in effect.

19.4 Export Licenses. Licensee acknowledges that the laws and regulations of the United States may restrict the export and re-export of certain commodities and technical data of United States origin. Licensee agrees that it will not export or re-export the Bungee Run-Time Code in any form without the appropriate United States or foreign government licenses. If Licensee exports Units or Bungee Run-Time Code from the United States, Licensee shall be responsible for any duties, penalties on other claims arising out of or relating to such exportation and importation. Upon Licensee's prior written request, BL agrees to provide Licensee with information reasonably required by Licensee to obtain appropriate export licenses.

19.5 GOVERNMENT RESTRICTED RIGHTS: The Bungee Run-Time Code and Documentation are provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions set forth in subparagraphs (a) through (d) of the Commercial Computer Software--Restricted Rights at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, and in similar clauses in the NASA FAR supplement, as applicable. Manufacturer is Bungee Labs, Inc./ 625 East Technology Ave, B-2300/ Orem, Utah 84097. Licensee acknowledges that neither the Bungee Run-Time Code or underlying information or technology may be download or otherwise exported or re-exported (i) into (or to a national or resident of) any country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders. Licensee represents and warrants that it is not located in or under the control of a national or resident of any such country or on any such list.

19.6 Miscellaneous. This Agreement, together with the Attachments attached hereto and made a part hereof, and the BCSL R&D, constitute the complete and exclusive agreement between BL and Licensee with respect to its subject matter, and supersede all prior oral or written understandings, communications or agreements, notwithstanding any variance with any purchase order or other written instrument submitted by Licensee, whether formally rejected by BL or not. If any provision of the BCSL R&D conflicts with a provision of this Agreement, this Agreement governs. This Agreement may not be modified except in a writing duly signed by an authorized officer of BL and Licensee. The waiver by either party of any breach of this Agreement by the other party will not waive subsequent defaults by such party of the same or a different kind. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provision hereof. This Agreement shall be governed by and construed in accordance with the laws of the State of Utah, excluding that body of law known as conflicts of law. The state and federal courts located in Salt Lake City, Utah have exclusive jurisdiction over any claim relating to this Agreement, including contract and tort claims. This Agreement shall not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.

INTENDING TO BE LEGALLY BOUND, the parties have executed this Agreement by their duly authorized representatives, to be effective as of the date first written above.

[LICENSEE]

Name of Person or Entity:

____________________________________

Jurisdiction of Incorporation:

____________________________________

By: _________________________________

Print Name: __________________________

Title: _______________________________

Date: _______________________________

Address: ____________________________

Address: ____________________________

Address: ____________________________

Telephone: __________________________

Fax: ________________________________

BUNGEE LABS, INC.

By: _________________________________

Print Name: __________________________

Title: _______________________________

Date: _______________________________

ATTACHMENT A

CALCULATION OF ROYALTIES

1. Definitions. For the purposes of this Attachment A, the following definitions apply and supersede any other definition in the Agreement:

Unit means either a discrete copy of the Bungee Run-Time Code standing alone or a discrete copy of a combination of a Licensee Product and the Bungee Run-Time Code or any portion thereof.

2. Licensee shall pay BL royalties as follows:

2.1 Advance. Within fifteen days of the Effective Date, Licensee shall pay BL a non-refundable advance of X thousand dollars ($X000) against the royalties owed by Licensee for Units deployed for use in the first twelve (12) months of the Term of this Agreement.

2.2 Per-Unit Royalties. Licensee shall pay BL a royalty of: a) zero U.S. Dollars ($0.00) for each Unit of the Bungee Pulse Client distributed by Licensee hereunder, and b) Y-hundred U.S. Dollars ($Y00) per month for each Unit deployed for use of the Bungee Application Server or distributed to any third party under this Agreement.

3. Payment of Royalties; Reports.

Licensee's payment obligation for any Unit is triggered upon the first distribution or deployment of such Unit, whether first distribution is by Licensee or by Licensee's distributor. For example: if a Unit is shipped by Licensee to a reseller, and then to an End User, the royalty obligation is triggered upon Licensee's distribution of the Unit to the reseller. Licensee shall make payments in US dollars on a quarterly basis as follows: within thirty days after the end of each quarter during the Term, Licensee will pay to BL royalties for all Units shipped during such quarter, less any credits against the royalty advance. Licensee may pay by check or wire transfer.

Checks must be sent to:

Bungee Labs, Inc.
625 East Technology Avenue, B-2300
Orem, Utah 84097

Wire transfers must be sent to:

For Credit to Bungee Labs
RE: (Licensee Name Here)
Silicon Valley Bank
SIL VLY BK SJ
3003 Tasman Drive, Santa Clara, CA 95054
Routing & Transit #: 121140399
Credit Account#: 3300501226

Within thirty days after the end of each quarter during the Term, Licensee shall also send to BL a royalty report containing all of the following information to [email protected]:

  1. Date of report
  2. Period covered by report
  3. Licensee name
  4. Complete Licensee mailing address, including country
  5. Name of contact at Licensee
  6. Licensee contact's title
  7. Licensee contact's facsimile number
  8. Licensee contact's email address
  9. For each Licensee Product:
    1. Licensee Product name and model number
    2. Customer names (if known)
    3. For each known customer, the customer's product name and model number (if known)
    4. Destination countries for each customer product
    5. Which Bungee Run-Time Code is included in the Licensee Product (Bungee Application Server, Bungee Pulse Client, or both)
    6. Quantity of Units shipped in the reporting period
    7. Royalty rate
    8. Royalties due to BL

ATTACHMENT b

Third Party Software

The Bungee Run-Time Code is accompanied by certain Third Party Software. The Third Party Software is made available to you under the terms and conditions applicable to such software, as set forth below.

[To be determined.]