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End User License Agreement

Last updated August 15, 2025

This End User License Agreement (this “Agreement”), effective as of the Effective Date (defined below), is by and between Nominal, Inc. (“NOMINAL”), located at 610 Brazos Street, Suite 600, Austin, Texas 78701, and Customer (defined below). If Customer is an instrumentality of the U.S. federal government (“U.S. GOVERNMENT”), this Agreement shall bind the ordering activity as end user but shall not operate to bind a Government employee or person acting on behalf of the Government in his or her personal capacity. Nominal and Customer may be referred to herein collectively as the “PARTIES” or individually as a “PARTY”.

1. Definitions

(a) “AFFILIATE” means a company Controlled by Customer or which is under common Control with Customer, where, “CONTROL” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of that company, whether through ownership of voting interests, by contract or otherwise.

(b) “AUTHORIZED USER” means an employee, agent or contractor that Customer has authorized to Use the Platform.

(c) “CUSTOMER” means the customer set forth on the Order Form. If there is no Order Form then Customer shall be the person or entity that subscribed to the Platform online.

(d) “CUSTOMER DEVELOPMENTS” means any developments or materials resulting from Professional Services that are identified as such in the Order Form that sets forth such Professional Services.

(e) “CUSTOMER MATERIALS” means all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Customer through the Platform or to Nominal in connection with Customer’s Use of the Platform, but excluding, for clarity, Deidentified Data and any information, data, data models, content or materials owned or controlled by Nominal and made available through or in connection with the Platform.

(f) “DEIDENTIFIED DATA” means any data that is derived or aggregated in deidentified form from Customer’s and/or its Authorized Users’ Use of the Platform, which Nominal utilizes for application performance management, including without limitation any usage data or trends with respect to the Platform.

(g) “DOCUMENTATION” means the operator and user manuals, training materials, specifications, minimum system configuration requirements, compatible device and hardware list and other similar materials in hard copy or electronic form if and as provided by Nominal to Customer (including any revised versions thereof) relating to the Platform, which may be updated from time to time at Nominal’s discretion upon notice to Customer.

(h) “EFFECTIVE DATE” means the date set forth on the Order Form. If there is no Order Form then the Effective Date shall be the date that Customer subscribed to the Platform online.

(i) “INTELLECTUAL PROPERTY RIGHTS” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.

(j) “USAGE LIMITS” means the limits, volume or other measurement or conditions of permitted Use for the applicable Platform Service as set forth in the applicable Order Form, including, but not limited to, any limits on the number of Authorized Users permitted to Use the Platform, volume of transactions that may be processed, or processing environments, based on Customer’s subscription tier.

(k) “NOMINAL DEVELOPMENTS” means any developments or materials resulting from Professional Services that are not identified as Customer Developments.

(l) “NOMINAL MATERIALS” means the Platform, Software, the underlying software provided in conjunction with the Platform and Software, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Platform or any Professional Services (including, without limitation, all Nominal Developments), Documentation, and Deidentified Data, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.

(m) “ORDER FORM” means a (i) mutually executed order form or other mutually agreed upon ordering document; (ii) purchase order issued by Customer and accepted by Nominal in writing; or (iii) quote issued by Nominal and accepted by Customer, in each case which references this Agreement and sets forth the applicable Platform and/or Professional Services to be provided by Nominal. If Customer subscribed to the Platform online then Order Form refers to the Platform and related terms selected by the Customer at that time.

(n) “PERSON” means any individual, corporation, partnership, trust, limited liability company, association, governmental authority or other entity.

(o) “PROFESSIONAL SERVICES” means the implementation, integration, customization, audit, training and/or other professional services, if any, to be provided by Nominal to Customer as set forth in the relevant Order Form.

(p) “PLATFORM” means Nominal’s proprietary solution designed to accelerate and enhance testing of software and hardware in industrial applications, including, without limitation, data engine and analysis components, and Software, as more particularly described or identified in the applicable Order Form, along with all related technology and applications. The Platform does not include any new products, services, Software or improvements for which Nominal charges a separate fee, but does include error corrections, enhancements and other modifications made to the existing Platform that are generally distributed to all customers without a separate fee.

(q) “SOFTWARE” means any software provided by Nominal as part of the Platform that is installed and operated on Customer systems, as more particularly described or identified in the applicable Order Form.

(r) “USE” means to use and/or access the Nominal Materials in accordance with this Agreement and the Documentation.

2. Platform; Software; Access and Use

A. Licenses

Subject to the terms and conditions of this Agreement, Nominal hereby grants Customer a limited, non-exclusive, non-transferable (except in compliance with Section 12(a)), non-sublicensable right during the Term to: (i) Use the Platform, and (ii) download, install, reproduce (up to any Usage Limits and for reasonable backup purposes only) operate and Use the Software, solely for Customer’s internal business purposes in accordance with, and subject to, the Usage Limits. Customer has not relied on the presence of any feature of the Platform or any information about possible future features and Nominal reserves the right to modify or supplement the Nominal Materials but will use reasonable commercial efforts to provide notice of such modifications.

B. Use Restrictions

Except as set forth in this Agreement or as required by applicable law, Customer will not at any time and will not permit any Person (including, without limitation, Authorized Users) to, directly or indirectly:

  • (i) use the Nominal Materials in any manner beyond the scope of rights expressly granted in this Agreement;
  • (ii) modify or create derivative works of the Platform, Software, or Documentation, in whole or in part;
  • (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Platform or the Software, in whole or in part;
  • (iv) frame, mirror, sell, resell, rent or lease the Nominal Materials to any other Person, or otherwise allow any Person to use the Nominal Materials for any purpose other than for the benefit of Customer in accordance with this Agreement;
  • (v) use the Platform, Software, or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable law;
  • (vi) interfere with, or disrupt the integrity or performance of, the Platform, or any data or content contained therein or transmitted thereby;
  • (vii) access or search the Platform (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than Platform as provided by Nominal;
  • (viii) Use the Platform to store, collect or host any classified information or data subject to non-U.S. export control jurisdiction; or
  • (ix) use the Platform, Software, Documentation or any other Nominal Confidential Information for the specific purpose of benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could compete with the Nominal Materials.

C. Authorized Users

Customer will not allow any Person other than Authorized Users to Use the Nominal Materials. Customer may permit Authorized Users to Use the Nominal Materials, provided that (i) the Use, including the number of Authorized Users, does not exceed the Usage Limits; and (ii) Customer ensures each Authorized User complies with all applicable terms and conditions of this Agreement and Customer is responsible for acts or omissions by Authorized Users in connection with their Use of the Nominal Materials. Customer will, and will require all Authorized Users to, use all reasonable means to secure usernames and passwords, hardware and software used to access the Nominal Materials in accordance with customary security protocols, and will promptly notify Nominal if Customer knows or reasonably suspects that any username and/or password has been compromised. Each account for the Platform may only be accessed and used by the specific Authorized User for whom such account is created. Usernames and passwords for Authorized Users cannot be shared or used by more than one individual User to access the Nominal Materials but may be reassigned to a new Authorized User replacing a person who no longer requires access to them.

D. Third-Party Services

Certain features and functionalities within the Nominal Materials may allow Customer and its Authorized Users to interface or interact with, access and/or use compatible third-party services, products, technology and content (collectively, “Third-Party Services”) through the Nominal Materials. Third-Party Services may include, by way of example and not limitation, Gitlab, Confluence or JIRA. Nominal does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Platform, Software, or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. Customer is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Customer to use the Third-Party Services in connection with the Nominal Materials.

E. Reservation of Rights

Subject to the limited rights expressly granted hereunder, Nominal reserves and, as between the Parties will solely own, the Nominal Materials and all rights, title and interest in and to the Nominal Materials, including, without limitation, all updates, upgrades, modifications, modules, interfaces, improvements, customizations, implementations, enhancements, and derivative works thereto and thereof and all Intellectual Property Rights therein. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.

F. Feedback

From time to time Customer or its employees, contractors, or representatives may provide Nominal with suggestions, comments, feedback or the like with regard to the Nominal Materials (collectively, “Feedback”). Customer hereby grants Nominal a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Nominal’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Nominal Materials.

G. Professional Services

If requested by Customer, Nominal may provide to Customer certain Professional Services, including, without limitation, support, as shall be agreed upon in an Order Form or other written agreement. Such Professional Services will be provided at the rates set forth and in the manner specifically described in the applicable Order Form or other written agreement.

H. Affiliates

Customer’s Affiliates may purchase subscriptions to the Platform under the same terms as Customer, provided that Customer: (a) requires each Affiliate to agree to the terms of this Agreement; (b) enforces this Agreement in regard to each such Affiliate; and (c) is responsible for each such Affiliate’s compliance with the Agreement and payment of all fees.

3. Fees and Payment

A. Fees

Customer will pay Nominal the non-refundable fees set forth in the relevant Order Form in accordance with the terms therein (“Fees”) and without offset or deduction. Unless the Customer is an instrumentality of the U.S. Government, Nominal reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or then-current Renewal Term, upon sixty (60) days’ prior notice to Customer (which may be sent by email). Nominal will issue invoices to Customer in accordance with the terms outlined on the Order Form. Customer will pay all amounts set forth on any such invoice no later than thirty (30) days after the date of such invoice. If Customer has signed up for automatic billing, Nominal will charge Customer’s selected payment method for any Fees on the applicable payment date, including any applicable taxes. If Nominal cannot charge Customer’s selected payment method for any reason (such as expiration or insufficient funds), Customer remains responsible for any uncollected amounts, and Nominal will attempt to charge the payment method again as Customer may update its payment method information. In accordance with local law, Nominal may update information regarding Customer’s selected payment method if provided such information by Customer’s financial institution. In the event a dispute arises involving an instrumentality of the U.S. Government Customer concerning such outstanding fees, such dispute will be subject to the applicable disputes clause in the underlying government contract.

B. Payments

Payments due to Nominal under this Agreement must be made in U.S. dollars by ACH, wire transfer of immediately available funds to an account designated by Nominal or such other payment method mutually agreed by the Parties. All payments are non-refundable, and neither Party will have the right to set off, discount, or otherwise reduce or refuse to pay any amounts due to the other Party under this Agreement. If Customer fails to make any payment when due, late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law, and Nominal may suspend Services until all payments are made in full. Customer will reimburse Nominal for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest. Notwithstanding the foregoing, if Customer is an instrumentality of the U.S. Government, in the event a dispute arises under this Agreement, Nominal will continue performance while the dispute is adjudicated pursuant to the applicable disputes clause in the underlying government contract.

C. Taxes

Customer is responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Customer to Nominal hereunder, other than any taxes imposed on Nominal’s income. Without limiting the foregoing, in the event that Customer is required to deduct or withhold any taxes from the amounts payable to Nominal hereunder, Customer will pay an additional amount, so that Nominal receives the amounts due to it hereunder in full, as if there were no withholding or deduction. If Customer is an instrumentality of the U.S. Government, the payment of any taxes or surcharges will be governed by the terms of the underlying government contract and must be submitted to the Contracting Officer for a determination of applicability prior to invoicing, unless specifically agreed to otherwise in the government contract.

4. Confidential Information

A. Definition

As used herein, “CONFIDENTIAL INFORMATION” means any Information that one Party (the “DISCLOSING PARTY”) provides to the other Party (the “RECEIVING PARTY”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, the Nominal Materials will be deemed Confidential Information of Nominal. However, Confidential Information will not include this Agreement; any information or materials that: (i) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (ii) were rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (iii) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (iv) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party. Without limiting the foregoing, nothing in this Agreement will limit or restrict Nominal’s ability to use or disclose any general know-how, experience, concepts and/or ideas that Nominal or its personnel acquire or obtain in connection with the performance of Nominal’s obligations hereunder.

B. Obligations

The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence, and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that Nominal may use and modify Confidential Information of Customer in deidentified form for purposes of developing and deriving Deidentified Data. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.

C. Expiration

Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years after the termination of this Agreement; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive for as long as such Confidential Information remains subject to trade secret protection under applicable law.

D. Agreement

The terms and conditions of this Agreement will constitute Confidential Information of each Party but may be disclosed on a confidential basis to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes. Notwithstanding the foregoing, if the Customer is an instrumentality of the U.S. Government, the Customer’s responsibilities under this Section 4 will be governed by the Freedom of Information Act, as applicable.

5. Customer Materials and Data

A. Ownership

Nominal acknowledges that, as between Customer and Nominal and except as set forth in Section 5(b), Customer owns and retains all right, title and interest in and to all Customer Materials. If an Order Form expressly specifies that Customer Developments will be produced by Nominal as part of Professional Services, Customer shall be the owner of such Customer Developments and Nominal hereby assigns all rights, title and interest in such Customer Developments to Customer. Nominal shall retain, and Customer hereby grants to Nominal, a perpetual, irrevocable right and license to use the Customer Developments for internal purposes for testing purposes and for improving the Nominal Materials provided that no Customer Materials are made part of such improvements.

B. License; Representations and Warranties

Customer hereby grants Nominal a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display, perform, modify the Customer Materials solely for the purpose of hosting, operating, improving, and providing the Platform, Professional Services and Nominal’s other related products, services and technologies during the Term. Customer represents and warrants that (i) it has obtained and will obtain and continue to have, during the Term, all necessary rights, authority and licenses for the access to and use of the Customer Materials (including any personal data provided or otherwise collected pursuant to Customer’s privacy policy) as contemplated by this Agreement and (ii) Nominal’s use of the Customer Materials in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Customer and any third party.

C. Data Security

The Parties will use commercially reasonable efforts and take no less than industry standard precautions to store, collect, transmit, handle and receive all data received from the other Party in connection with this Agreement, and will cooperate with one another in good faith with respect to any issue, inquiry or incident involving the security of such data to the extent necessary to comply with applicable laws, rules and regulations including, without limitation, all applicable data protection and privacy laws.

6. Representations and Warranties

A. Mutual

Each Party hereby represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into this Agreement and (ii) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party. Nominal hereby further warrants that the Platform will perform materially in accordance with the Documentation, provided, however, that Customer’s sole remedy and Nominal’s sole obligation for a breach of this warranty will be to correct any reproducible failure reported by Customer to perform in accordance with the Documentation or, if Nominal determines that correction is not practical, to permit Customer to terminate this Agreement and receive a pro-rated refund of fees through the end of the applicable subscription term.

B. Export Control

Each Party represents and warrants that in the performance of its rights and obligations under this Agreement, each Party will comply with all laws, rules, and regulations of any jurisdiction applicable to it from time to time concerning or relating to export controls, trade embargoes or other similar prohibitions or restrictions on activity imposed by a U.S. or other relevant government authority, including without limitation the U.S. Office of Foreign Assets Control (“OFAC”) sanctions, International Traffic in Arms Regulations (“ITAR”) and the U.S. Export Administration Regulations (“EAR”). Should a Party learn of, or have reasons to know of, any violations of the laws, rules and regulations listed above in connection with the performance of this Agreement, it shall immediately notify the other Party. Each Party represents and warrants that it is not, nor is it 50% or more owned or otherwise controlled by a party or parties: (i) located, ordinarily resident, or legally organized in any embargoed country (presently including Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk and Luhansk regions of Ukraine); (ii) listed on or otherwise subject to any sanctions asset blocking list, export denial list, other prohibited transactions list or directive; or (iii) engaged in activities prohibited by export controls or sanctions laws or that would cause such Party to violate such controls and laws in its performance of this Agreement. Customer represents and warrants that it will not Use the Platform to store, collect or host any classified information or data subject to non-U.S. export control jurisdiction;. Customer represents and warrants that it has and will continue to have any and all required governmental authorization to Use the Platform, any Third-Party Services, and any Customer Materials thereon.

C. Disclaimer

EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PLATFORM, SOFTWARE, PROFESSIONAL SERVICES AND OTHER NOMINAL MATERIALS ARE PROVIDED ON AN “AS IS” BASIS, AND NOMINAL MAKES NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER, ITS AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE NOMINAL MATERIALS, THE PLATFORM, PROFESSIONAL SERVICES OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOMINAL HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, NOMINAL HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE NOMINAL MATERIALS OR PROFESSIONAL SERVICES WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED If Customer is an instrumentality of the U.S. Government, this Section 6(c) does not limit or disclaim the warranty set forth in Federal Acquisition Regulation (“FAR”) 52.212-4(o) to the extent such clause is incorporated in the underlying government contract. In the event of a breach of warranty under Section 6, the U.S. Government reserves all rights and remedies under the contract, the Federal Acquisition Regulation or supplements, and the Contract Disputes Act, 41 U.S.C. 7101-7109.

7. Indemnification

A. Nominal Indemnification

Subject to Section 7(b), Nominal will defend Customer against any claim, suit or proceeding brought by a third party (“Claims”) alleging that Customer’s Use of the Platform infringes or misappropriates such third party’s Intellectual Property Rights, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer or agreed in settlement by Nominal (including reasonable attorneys’ fees) resulting from such Claim.

B. Exclusions

Nominal’s obligations under Section 7(a) will not apply if the underlying third-party Claim arises to the extent of: (i) Customer’s breach of this Agreement, or the gross negligence, willful misconduct or fraud of Customer; (ii) any Customer Materials; (iii) Customer’s failure to use any enhancements, modifications, or updates to the Platform that have been provided by Nominal; (iv) modifications to the Platform by anyone other than Nominal; (v) combinations of the Platform with software, data or materials not provided by Nominal; or (vi) Customer’s continued Use of a prior version of the Platform that has been superseded by a non-infringing version subsequently released by Nominal.

C. IP Remedies

If Nominal reasonably believes the Platform (or any component thereof) could infringe any third party’s Intellectual Property Rights, Nominal may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the Platform, or any component or part thereof, to make it non-infringing; or (ii) procure the right for Customer to continue Use. Except where Customer is an instrumentality of the U.S. Government, if Nominal determines that neither alternative is commercially practicable, Nominal may terminate this Agreement in its entirety or with respect to the affected component by providing written notice to Customer and refunding to Customer a pro rata amount of any prepaid fees through the end of the applicable subscription term. The rights and remedies set forth in this Section 7 will constitute Customer’s sole and exclusive remedy for any infringement or misappropriation of Intellectual Property Rights in connection with the Platform.

D. Customer Indemnification

Customer will defend Nominal against Claims arising from (i) any Customer Materials, including, without limitation, (A) any Claim that the Customer Materials infringe, misappropriate or otherwise violate any third party’s Intellectual Property Rights or privacy or other rights; or (B) any Claim that the use, provision, transmission, display or storage of Customer Materials violates any applicable law, rule or regulation; (ii) any of Customer’s products or services; and (iii) Use of the Platform by Customer or its Authorized Users in a manner that is not in accordance with this Agreement or the Documentation, including, without limitation, any breach of the license restrictions in Section 2(b), and in each case, will indemnify and hold harmless Nominal against any damages and costs awarded against Nominal or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim. If the Customer is an instrumentality of the U.S. Government, this Section 7(d) shall not apply to Customer.

E. Indemnification Procedures

The Party seeking defense and indemnity (the “Indemnified Party”) will promptly notify the other Party (the “Indemnifying Party”) of the Claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services). The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.

8. Limitations of Liability

A. Exclusion of Damages

NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE NOMINAL MATERIALS OR THE PROVISION OF THE PLATFORM AND PROFESSIONAL SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

B. Total Liability

EXCEPT FOR: (I) A PARTY’S INDEMNITY OBLIGATIONS HEREUNDER; (II) ANY INFRINGEMENT BY CUSTOMER OF NOMINAL’S INTELLECTUAL PROPERTY RIGHTS; OR (III) FRAUD OR WILLFUL MISCONDUCT BY EITHER PARTY, IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY TO THE OTHER PARTY OR ITS AUTHORIZED USERS IN CONNECTION WITH THIS AGREEMENT, THE NOMINAL MATERIALS OR THE PROVISION OF THE PLATFORM OR PROFESSIONAL SERVICES EXCEED THE FEES ACTUALLY PAID BY THE CUSTOMER TO NOMINAL IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES AGREE THE REMEDIES IN THIS SECTION 8(B) ARE FAIR AND ADEQUATE.

C. Basis of the Bargain

THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 8 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN NOMINAL AND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.

9. Term and Termination

A. Term

The term of this Agreement begins on the Effective Date and continues until the end of all Order Form terms (the “Term”). Following the Term, this Agreement will automatically renew for additional periods of one (1) year, unless either Party provides the other with at least thirty (30) days’ written notice of its intent not to renew this Agreement prior to the end of the then-current Term. If the Customer is an instrumentality of the U.S. Government, nothing contained herein will be construed as an automatic renewal and the term of the Agreement will be governed by the underlying government contract.

B. Termination

Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach. If the Customer is an instrumentality of the U.S. Government, termination of the Agreement will be governed by the underlying government contract.

C. Survival

This Section 9(c) and Sections 1, 2(b), 2(c), 2(e), 2(f), 3, 4, 5, 6, 7, 8, 9(d), 11 and 12 survive any termination or expiration of this Agreement.

D. Effect of Termination

Upon expiration or termination of this Agreement: (i) the rights granted pursuant to Section 2(a) will terminate; and (ii) Customer will return or destroy, at Nominal’s sole option, all Nominal Confidential Information in its possession or control, including permanent removal of such Nominal Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in the Customer’s possession or under its control, and at Nominal’s request, certify in writing to Nominal that the Nominal Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due or otherwise accrued through the effective date of expiration or termination, or entitle Customer to any refund.

10. Publicity

Subject to the provisions of Section 4, each Party shall have the right to publicly announce the existence of the business relationship between the Parties. In addition, during the term of Customer’s Use of the Platform, upon Customer’s written consent, Nominal may use Customer’s name, trademarks, and logos (collectively, “Customer Marks”) on Nominal’s website and in its marketing materials to identify Customer as Nominal’s customer, and for the purpose of providing the Platform and any Professional Services to Customer, provided that Nominal shall use commercially reasonable efforts to adhere to the usage guidelines furnished by Customer with respect to Customer Marks. All goodwill and improved reputation generated by Nominal’s use of the Customer Marks inures to the exclusive benefit of Customer. Nominal will use the Customer Marks in the form stipulated by Customer and will conform to and observe such standards as Customer prescribes from time to time in connection with the license granted hereunder.

11. U.S. Government Customers

The provisions of this Section 11 shall apply only if the Customer or its organization is an instrumentality or component of the U.S. Government. Customer agrees that the Platform, Software and Documentation were developed solely at private expense and are “commercial product[s]” and “commercial computer software” as those terms are defined at FAR 2.101. If a right to access the Platform, Software and Documentation is procured for or on behalf of Customer, Customer is solely granted those rights in technical data and computer software customarily provided to Nominal’s customers as described in this Agreement and as contemplated by (i) FAR 12.211 and FAR 12.212 if Customer is part of any agency other than the U.S. Department of Defense and (ii) DFARS 227.7202-3 and DFARS 252.227-7015 if Customer is part of the U.S. Department of Defense. Nominal will have no obligation to deliver additional data to the U.S. Government or any third party other than the Platform, Software and Documentation expressly identified in writing by Nominal as being provided subject to this Agreement. This Agreement, including this Section 11, applies in lieu of any other FAR, DFARS, or other clause, provision, statute, or supplemental regulation that addresses U.S. Government rights in technical data or computer software. The validity, interpretation, and enforcement of this Agreement shall be governed and construed in accordance with the federal laws of the United States and the federal common law of government contracts as established by the federal courts in the District of Columbia.

12. General

A. Assignment

Neither Party may assign or transfer this Agreement, by operation of law or otherwise, without the other Party’s prior written consent. Any attempt to assign or transfer this Agreement without such consent will be void. Notwithstanding the foregoing, either Party may assign or transfer this Agreement to a third party that succeeds to all or substantially all of the assigning Party’s business and assets relating to the subject matter of this Agreement, whether by sale, merger, operation of law or otherwise. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assign.

B. Force Majeure

Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) 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, insofar 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.

C. Safety

Customer shall not engage in any activities where the use or failure of the Platform would reasonably be expected to result in death, serious personal injury, or severe environmental or property damage.

D. Severability

If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.

E. Entire Agreement; Construction

This Agreement, including its Order Forms and other exhibits, is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. The Parties agree that the rule of construction that a contract be construed against the drafter, if any, shall not be applied in the interpretation and construction of this Agreement.

F. Precedence

The terms of this Agreement will control over any conflicting terms or document except as follows: (i) conflicting terms in an Order Form will control but only if such terms identify the provision of this Agreement that is being modified; and (ii) if Customer is an instrumentality of the U.S. Government, and this Agreement conflicts with the terms of the underlying government contract, the applicable order of precedence clause in the government contract will govern. No terms in any preprinted or other document, including without limitation any Customer purchase order or equivalent, will apply to or modify this Agreement.

G. Amendment; Waiver

This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the Parties. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the Parties. Neither Party will have the power to bind the other or to incur obligations on the other’s behalf without such other Party’s prior written consent. Except as expressly set forth in this Agreement, the exercise by either Party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.

H. Choice of Law; Arbitration

This Agreement will be governed by and construed in accordance with the laws of the State of New York without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Except when Customer is an instrumentality of the U.S. Government, any legal action or proceeding arising under this Agreement will be subject to binding arbitration before the American Arbitration Association branch located in New York City, with three (3) arbitrators (each Party selecting an arbitrator and the third selected by the other two), provided, however, that this shall not prevent either Party may seek preliminary equitable relief.

I. Notices

All notices required to be sent hereunder will be in writing and will be deemed to have been given when mailed by United States Postal Service Priority Mail, with delivery confirmation, or sent by email, with receipt confirmed.

J. Counterparts

This Agreement may be signed in counterparts, and electronic signatures will have the same weight and effect as original.