NX POWERPACK END USER LICENSE AGREEMENT

1. DEFINITIONS.

(a) “Licensed Volume” means the limits, volume or other conditions of permitted use for the Software as set forth in the Order Information, including any limits on the number of Authorized Users or number of workspaces.

(b) “Nx IP” means the Software, algorithms, technology, databases, tools, know-how or processes used to provide or deliver the Software or any related services, and its documentation (“Documentation”), all improvements, modifications or derivative works of the foregoing (regardless of authorship), and all intellectual property rights (“IPR”) in any of the foregoing.

(c) “Order Information” means (i) certain terms associated with your subscription to Use the Software, as communicated to you via our pricing page available at https://cloud.nx.app/powerpack/purchase (“Pricing Page”) , as may be updated from time to time or (ii) as otherwise set forth in a written order form or purchase order signed by you and Nx (“PO”).

2. LICENSE.

(a) License. Subject to the terms and conditions of this Agreement (including receipt of the License Key), Nx hereby grants you a worldwide, non-exclusive, non-transferable (except in compliance with Section 12), non-sublicensable license to download and install the Software on premises owned or controlled by you, and run the Software solely for your internal business purposes (the “Purpose”) during the Term in accordance with the Documentation and subject to the Licensed Volume. You have the right to permit your employees or contributors (“Authorized Users”) to use the Software on your behalf for the Purpose in accordance with this Agreement; provided, however, that you will remain fully and directly liable to Nx for any and all use of the Software by Authorized Users as if such use was by you yourself under this Agreement. Nothing in this Agreement will operate to grant you any right, title or interest, whether by implication, estoppel or otherwise, in or to the Nx IP, other than as expressly set forth herein. As between Nx and you, Nx will exclusively own all right, title and interest in and to the Nx IP.

(b) Use Restrictions. You will not at any time, directly or indirectly, and will not permit any person or entity (collectively, “Person”) (including, without limitation, your Authorized Users) to: (i) copy, modify or create derivative works of the Software or Documentation, in whole or in part; (ii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Software, in whole or in part; (iii) frame, mirror, sell, resell, rent or lease the use of the Software, License Key or Documentation to any other Person, or otherwise use or allow any Person to use the Software, License Key or Documentation for any purpose other than for your benefit for the Purpose in accordance with this Agreement; (iv) create any script or other automated tool that attempts to create multiple License Keys; (v) use the Software or License Key in any infringing or unlawful manner; or (vi) use the Software, Documentation or any other Confidential Information of Nx for competitive analysis or benchmarking purposes, or to otherwise develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Nx IP.

(c) Authorized Equipment. You will bear the sole responsibility for obtaining and maintaining the hardware and any computer systems, networks, telecommunications systems, Internet access, third party services or any other materials required to meet the minimum technical and operational requirements required to operate the Software.

3. LICENSE KEY; FEES AND PAYMENT.

To use the Software, you are required to purchase a license key via the Pricing Page or PO (“License Key”). You are liable for any actions or inactions performed under your License Key. You will pay Nx all fees set forth in your Order Information (“Fees”) on the payment dates specified in your Order Information. All Fees are non-refundable. Nx reserves the right to change the Fees and Licensed Volume and to institute new Fees and revised limits of the Licensed Volume upon 30 days’ prior notice to you. Unless otherwise specified in the Order Information, Fees will be paid by the approved credit card that you designate when you sign up to use the Software. You hereby authorize us to initiate all payment transactions for Fees from your approved credit card when such Fees are due, if applicable. Any and all Fees that are not paid to Nx when due will accrue interest at a rate of 1.5% per month, or the maximum rate permitted by law, whichever is greater. In the event of a conflict between this Agreement and the Order Information, the Order Information will control and govern. All Fees do not include any sales, use, value added or other applicable taxes, payment of which will be your sole responsibility (excluding any taxes based on Nx’s net income).

4. CONFIDENTIAL INFORMATION.

“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. Confidential Information will not include any information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by the Receiving Party; (ii) is rightfully known by the Receiving Party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the Receiving Party without access to or use of any Confidential Information of the Disclosing Party that can be evidenced in writing; or (iv) is rightfully obtained by the Receiving Party from a third-party without restriction on use or disclosure. For clarity, the Software and the Documentation will be deemed Confidential Information of Nx. The Receiving Party will not use or disclose any Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement. The Receiving Party may disclose Confidential Information of the Disclosing Party only: (A) to those of its employees, contractors, agents and advisors 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 of the Confidential Information as those set forth in this Agreement, or (B) 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.

5. POLICIES; SUPPORT.

You hereby acknowledge that you have reviewed and agreed to the Nx Privacy Policy at https://cloud.nx.app/privacy. Such policy is hereby incorporated into and is hereby deemed a part of this Agreement, binding upon you and you Authorized Users with respect to your and their use of the Software in connection with this Agreement. As part of your subscription to the Software, Nx will provide reasonable support in connection with the Software in accordance with the support terms set forth in your Order Information.

6. FEEDBACK.

From time-to-time you or your Authorized Users may provide Nx with feedback with regard to the Software. You, on behalf of yourself and your Authorized Users, hereby grant Nx a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all such feedback in connection with Nx’s business purposes.

7. INDEMNIFICATION.

(a) Nx Indemnification. Nx will defend and pay all damages finally awarded against you pursuant to a final, valid and binding judgment or order, or a final settlement agreement with respect to any claim, suit or proceeding brought by a third party against you arising from the Software’s infringement of such third-party’s IPR. The foregoing obligation will not apply if the underlying third-party claim arises from (i) your breach of this Agreement, negligence, willful misconduct or fraud; (ii) modifications to the Software by anyone other than Nx; or (iii) combinations of the Software of with software, data or materials not provided by Nx. If Nx reasonably believes the Software (or any component) could infringe any third party’s IPR, Nx may, at its sole option and expense: (A) procure the right for you to continue using the Software (or any infringing component) to make it non-infringing without materially reducing its functionality; or (B) replace the Software (or any infringing component) with a non-infringing alternative that is functionally equivalent in all material respects. If the foregoing remedies are not available to Nx on commercially reasonable terms, then Nx may terminate your use of the Software upon notice to you.

(b) Your Indemnification. You will defend and pay all damages finally awarded against Nx pursuant to a final, valid and binding judgment or order or a final settlement agreement with respect to any claim, suit or proceeding brought by a third party against Nx arising from any breach of the restrictions set forth in Section 2(b).

(c) Indemnification Procedures. The party seeking defense and indemnity (the “Indemnified Party”) will promptly notify the other party (the “Indemnifying Party”) of any and all such claims and will reasonably cooperate with the Indemnifying Party with 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 unconditionally releases the Indemnified Party from all liability, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business). 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. DISCLAIMERS.

THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS, AND NX MAKES NO WARRANTIES OR REPRESENTATIONS TO YOU, YOUR AUTHORIZED USERS OR TO ANY OTHER PERSON REGARDING THE SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NX HEREBY DISCLAIMS (a) ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED AND (b) ANY WARRANTY THAT USE OF THE SOFTWARE WILL BE ERROR-FREE.

9. LIMITATIONS OF LIABILITY.

EXCEPT FOR A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, IN NO EVENT WILL (a) EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF SUBSTITUTE SERVICES OR OTHER ECONOMIC LOSS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE AND (b) NX’S TOTAL LIABILITY TO YOU, YOUR AUTHORIZED USERS OR ANY OTHER PERSON IN CONNECTION WITH THIS AGREEMENT OR THE PROVISION OF THE SOFTWARE EXCEED THE FEES ACTUALLY PAID BY YOU TO NX IN THE 12 MONTH PERIOD PRECEDING THE ACTION GIVING RISE TO SUCH LIABILITY.

10. TERM AND TERMINATION.

(a) Term; Termination. The term of this Agreement will begin on the effective date in the Order Information, and will expire at the end of the initial term specified in the Order Information (the “Initial Term”). Following the Initial Term, this Agreement will automatically renew for successive one-month terms (the Initial Term, together with any renewal term, the “Term”), unless Nx or you provides the other with at least twenty (20) days’ written notice of its intent not to renew prior to the end of the then-current term. 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: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach.

(b) Effect of Termination; Survival. Upon termination of this Agreement, your right to use the Software will immediately terminate and you shall cease using the Software, including for example, by permanently removing the Software dependency. This Section 10(b) and Sections 2(b), 3, 4, 5 (first sentence), 6 – 9 and 12 survive any termination of this Agreement.

11. TRADEMARKS.

You hereby grant Nx a limited, non-exclusive, royalty-free license to use and display your name, designated trademarks and associated logos (“Your Marks”) during the Term in connection with Nx’s marketing and promotional efforts for its products and services, including by publicly naming you as a customer of Nx. Nx will conform to and observe the trademark standards as you prescribe from time to time. All goodwill generated by Nx’s use of Your Marks inures to your benefit.

12. MISCELLANEOUS.

This Agreement, together with the Order Information, 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, including any prior terms. This Agreement may be amended or modified only by a written document assented by duly authorized representatives of the parties. Nx may perform an audit of your use of the Software once per year in connection with your compliance with this Agreement, including if you are exceeding the Licensed Volume. Nx may provide notices to you by posting them on our website, by providing electronic notification via the Software, or by email to the address associated with your account. You may provide notices to us via email at powerpack-support@nrwl.io. All notices are effective upon posting or when delivered. Except as otherwise set forth herein, 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. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, and the remaining provisions of this Agreement will remain in full force and effect. This Agreement will be governed by and construed in accordance with the laws of the State of California without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the parties irrevocably consent to the personal jurisdiction and venue therein. Nx may freely assign its rights and obligations under this Agreement. You may not assign or transfer this Agreement, by operation of law or otherwise, without Nx’s prior written consent; provided, however, that you may assign your rights or delegate your obligations, in whole or in part, without such consent, to (i) one or more of your affiliates, or (ii) a third party that succeeds to all or substantially all of your business and assets relating to the subject matter of this Agreement, whether by sale, merger, operation of law or otherwise. Any attempt to assign or transfer this Agreement without such consent will be void. 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 assigns. Unless otherwise expressly provided, no provisions of this Agreement are intended or will be construed to confer upon or give to any person or entity, other than the parties, any rights, remedies or other benefits under or by reason of this Agreement.