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SUBSCRIPTION LICENSE AGREEMENT
BEFORE INSTALLING AND USING THE PRODUCT (AS DEFINED BELOW) YOU SHOULD CAREFULLY READ
THE FOLLOWING SUBSCRIPTION LICENSE AGREEMENT (“AGREEMENT”) THAT APPLIES TO THE PRODUCT.
CLICK “I AGREE” IF YOU (ALSO REFERRED TO AS “LICENSEE”) FULLY ACCEPT AND AGREE TO ALL OF THE
PROVISIONS OF THIS AGREEMENT. OTHERWISE, CLICK “CANCEL.” CLICKING “I AGREE” OR OTHERWISE
DOWNLOADING, INSTALLING AND/OR USING THE PRODUCT ESTABLISHES A BINDING AGREEMENT
BETWEEN YOU AS THE PERSON LICENSING THE SOFTWARE, EITHER ON BEHALF OF YOURSELF OR ANY
THIRD PARTY ENTITY (THE "LICENSEE") AND APPNETA, INC. (“APPNETA). IF YOU DO NOT ACCEPT ALL OF
THE TERMS OF THIS AGREEMENT, YOU SHALL HAVE NO RIGHT TO DOWNLOAD, INSTALL AND/OR USE THE
PRODUCT AND MUST DELETE THE PRODUCT AND ASSOCIATED FILES IMMEDIATELY. THE RIGHT TO USE
THE PRODUCT IS SOLD ONLY ON THE CONDITION THAT YOU AGREE TO THE FOLLOWING TERMS AND
CONDITIONS.
BY INSTALLING AND/OR BY USING THE PRODUCT, YOU REPRESENT AND WARRANT THAT YOU HAVE THE
LEGAL CAPACITY AND AUTHORITY TO ENTER INTO A BINDING AGREEMENT TO ADHERE TO THE TERMS
AND CONDITIONS SET FORTH HEREIN, AND THAT THE PRODUCT WILL BE USED ONLY IN ACCORDANCE
WITH THESE TERMS AND CONDITIONS AND WITH ALL APPLICABLE LAWS. IF AN INDIVIDUAL IS
REGISTERING OR USING THE PRODUCT ON BEHALF OF AN ENTITY OR ORGANIZATION, THAT INDIVIDUAL
WARRANTS, REPRESENTS, AND COVENANTS TO APPNETA THAT SUCH INDIVIDUAL IS DULY AUTHORIZED
TO AGREE TO THESE TERMS AND CONDITIONS ON BEHALF OF THE ORGANIZATION AND TO BIND THE
ORGANIZATION TO THEM. WHERE APPLICABLE, THIS AGREEMENT APPLIES TO ALL PRODUCTS PROVIDED
BY APPNETA, INCLUDING ANY EVALUATION LICENSE.
1.
Definitions.
1.1 “Documentation” shall refer to the user manuals and other materials, including report templates and screen layouts, made
available in any form by AppNeta to Licensee in connection with or as a component of Licensee’s use of the Product.
1.2 “Licensee Data” shall refer to any data, information or other material provided to AppNeta by Licensee or loaded into the
Product.
1.3 “Product” shall refer to the Software (as defined in Section 2.3) and hardware licensed by Licensee pursuant to the on-line
order submitted by Licensee.
1.4 “Services” shall refer, individually and collectively, to the system configuration, training, user support and consulting
services which may be provided to Licensee by AppNeta from time to time, subject to the provisions set forth herein.
1.5 “Term” shall refer to the period of time during which this Agreement is in full force and effect, including all Subscription
Terms (as defined in Section 7.1) and Evergreen Usage Terms (as defined in Section 7.2).
2.
License Grant.
2.1 Internal Use License. Subject to the terms and conditions of this Agreement, including payment of the Subscription Fee,
AppNeta hereby grants to Licensee a limited, nonexclusive, non-transferable license to access and use the Product, without the
right to grant sublicenses, during the Term solely for Licensee’s internal business purposes. Licensee may permit the
Licensee’s individual employees, contractors or agents (“Authorized Users”) to access and use the Product on behalf of and for
the benefit of the Licensee; (c) to use the Product for Licensee’s internal business purposes to monitor and assess the number of
Paths licensed to Licensee as set forth in Licensee’s on-line order. For the purposes of this Agreement, “Path” means a
network path leading to one or more user devices, such as a single computer, a server, a handset, a mobile device, a WAN or
LAN, or such other IP device determined by the Licensee.
2.2 Documentation. Licensee shall be entitled to (a) use the Documentation internally solely to support its authorized use of
the Product, and (b) make that number of copies of the Documentation as are reasonably required for it to exercise its rights
under clause (a). Any such copies shall include all trademarks or other proprietary legends where and as set forth in the
original. Licensee agrees not to provide access to the Documentation to any third party except Authorized Users.
2.3 License Restrictions. Licensee shall not, and shall not attempt to (and shall not authorize or allow any third party to
attempt to) download or otherwise obtain a copy of any software installed in or accessible through the hardware provided by
AppNeta (the “Software”) in any form. Licensee will not: (i) disassemble, reverse engineer, decompile, or otherwise attempt to
derive source code from the Software; (ii) modify, adapt, create derivative works based upon, or translate the Software; (iii)
copy, install or use the Software on any of its computer systems, servers, or networks; (iv) assign, re-license or sublicense the
Product or the use of the Product; or (v) transfer, lease, loan, resell for profit, distribute or otherwise grant any rights in the
Product in any form to any other party, including commercial time-sharing, rental, or service bureau use. Licensee shall not use
the Product or the Documentation on behalf of any third party, or for any purpose other than monitoring, collecting, analyzing
and using Licensee Data for Licensee’s internal business purposes.
AppNeta, Inc
Oct 5, 2012
2.4 Licensee Compliance with Laws. Licensee acknowledges and agrees that it is Licensee’s obligation to comply with all
applicable laws and regulations in its use of the Product and Licensee Data, including those laws and regulations relating to
personal data protection and privacy.
3.
Proprietary Rights.
3.1 AppNeta Technology. Licensee acknowledges and agrees that subject to the limited rights expressly granted to Licensee
under Section 2, all trade secret, copyright, patent, trademark, trade name, and other intellectual and proprietary rights in the
Product and the Documentation, and in the technology embodied in or reflected by such Product and Documentation, (in each
case including any upgrades, modifications, extensions, derivatives, translations, reformulations or developments of the
foregoing), are and at all times shall remain the exclusive property of AppNeta. AppNeta’s suppliers are the intended third
party beneficiaries of the Agreement and have the express right to rely upon and directly enforce the terms set forth herein.
3.2 Licensee Data. AppNeta acknowledges and agrees that Licensee shall own all title to and ownership of the Licensee Data
and that AppNeta shall have no rights thereto except the limited right to use the same on an ‘as needed’ basis in connection
with the ongoing operation and maintenance of the Product and AppNeta’s performance of Services.
4. Services. Licensee shall receive maintenance and support services for the Product as set forth in the Maintenance Services
Description posted, from time to time, on the AppNeta’s web site (http://www.AppNeta.com). The cost of maintenance and
support services is included in the Subscription Fee. If AppNeta is asked to provide any professional services to Licensee, the
terms for such professional services shall be mutually agreed upon and specified in a written and signed Statement of Work
attached to this Agreement. The cost of professional services is not included in the Subscription Fee. Travel and living
expenses incurred by AppNeta in connection with maintenance, support, and professional services are not included in the
Subscription Fee. Licensee shall pay all reasonable travel and living expenses, including transportation, lodging, meals and
other direct expenses incurred, which will be billed at actual cost.
5. Warranty; Disclaimer. Subject to the limitations and exceptions set forth in this Agreement, AppNeta warrants that for a
period of sixty (60) days from the delivery of the Product, that when properly used for the purpose and in the manner
authorized by this Agreement, the Product will perform substantially in accordance with the specifications set forth in the
Documentation. Licensee’s sole and exclusive remedy and AppNeta’s sole and exclusive obligation under this warranty shall
be, at AppNeta’s sole discretion, (i) for AppNeta to correct any failure of the affected Product to perform as warranted, (ii) for
AppNeta to replace the affected Product with a new copy or update, or (iii) termination of this Agreement and the licenses
granted herein, and a refund of that portion of the prepaid Subscription Fee associated with the unused prepaid portion of the
then current Subscription Term. LICENSEE’S USE OF THE PRODUCT AND SERVICES IS AT ITS OWN RISK. EXCEPT
FOR THE EXPRESS WARRANTY STATED ABOVE, THE PRODUCT IS PROVIDED “AS IS” AND THE LICENSEE
ACCEPTS THE ENTIRE RISK AS TO THE QUALITY, PERFORMANCE AND RESULTS OF USE OF THE PRODUCT.
EXCEPT AS OTHERWISE RESTRICTED BY LAW, APPNETA AND ITS SUPPLIERS AND DISTRIBUTORS
DISCLAIM ALL OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES OF ANY KIND,
EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, ORAL OR WRITTEN, WITH RESPECT TO THE
PRODUCT AND ANY SERVICES FURNISHED IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT
LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS: (A) OF MERCHANTABILITY; (B) OF
SATISFACTORY OR MERCHANTABLE QUALITY; (C) OF FITNESS FOR A PARTICULAR PURPOSE; (D) OF
NONINFRINGEMENT; OR (E) ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE
OF TRADE. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE
ABOVE EXCLUSION MAY NOT APPLY TO THE LICENSEE, AND THE LICENSEE MAY HAVE OTHER LEGAL
RIGHTS THAT VARY FROM STATE TO STATE OR BY JURISDICTION.
6. Fees; Payment Terms. The Subscription Fee shall be invoiced in annually in advance. Invoices will be stated in United
States dollars and shall be due and payable within thirty (30) days following invoice date unless otherwise specified herein or
agreed upon in writing by the parties. Late payments shall be subject to a service charge equal to the lesser of 1% per month or
the maximum amount allowed by law, with respect to the overdue amount. License fees are non-refundable except as expressly
provided for herein. All fees are exclusive of all applicable taxes, duties or other governmental assessments. Licensee shall be
liable for the payment of all such assessments (other than taxes based on AppNeta’s income) and shall indemnify and hold
harmless AppNeta with respect to any claims, losses, damages, penalties or other liabilities incurred by AppNeta as a result of
Licensee’s failure to timely pay such assessments.
7. Term; Termination. All licenses shall be one of two forms; Term Subscription with explicitly defined start and end dates
as described in 7.1 or Evergreen Usage Terms as described in 7.2.
7.1 Subscription Term. The initial subscription period of this Agreement shall commence on the Effective Date, shall
continue for the term specified in the on-line order, and shall be renewed for successive one (1) year terms thereafter unless
either party gives the other party written notice of its intent not to renew the term at least thirty (30) days prior to the expiration
of the then-current term (each subscription period, a “Subscription Term”). AppNeta reserves the right to increase the
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Subscription Fee by no more than 6% for each renewal term, provided notice of any such increase is provided to Licensee no
later than forty-five (45) days prior to the expiration of the then-current term.
7.2 Evergreen Usage Term. The initial subscription period of this Agreement shall commence on the Effective Date, shall
continue for the term specified in the on-line order, and shall be renewed automatically for successive one (1) month terms
thereafter unless either party gives the other party written notice of its intent not to renew the term at least thirty (30) days prior
to the expiration of the then-current term (each subscription period, a “Subscription Term”). AppNeta will monitor the usage
of the service by the Licensee and the Licensee agrees to be billed according to the terms of the original Evergreen Usage
purchase. AppNeta reserves the right to increase the Subscription Fee by no more than 6% for each renewal term, provided
notice of any such increase is provided to Licensee no later than forty-five (45) days prior to the expiration of the then-current
term.
7.3 Termination. Either party may terminate this Agreement (a) upon thirty (30) days prior written notice if the other party has
materially breached this Agreement and has not cured the same within the thirty (30) day notice period, or (b) immediately
upon written notice in the event of (i) the bankruptcy, insolvency, or placing of the assets or the business of the other party in
the hands of a receiver or trustee, (ii) the filing of a petition for bankruptcy or reorganization by or against the other party, or
(iii) the dissolution or liquidation of the other party. A termination of this Agreement shall result in the automatic
contemporaneous termination of the then current Subscription Term.
7.4 Effect of Termination. Upon any termination of this Agreement, (a) Licensee shall promptly: (i) discontinue all use of the
Product and Documentation; (ii) erase or destroy any electronic copies or partial copies of the Documentation destroy any
tangible copies or partial copies of the Documentation, in its possession or control; and (iii) certify in writing to AppNeta that
Licensee has complied with these requirements; (b) AppNeta shall terminate Licensee’s access to any hosted Software; and (c)
both parties shall promptly return to the other or destroy the other party’s Confidential Information. Upon request by Licensee
made within thirty (30) days after the effective date of termination of this Agreement, AppNeta will make available to Licensee
for download a file of Licensee’s Data in comma separated value (.csv) format along with attachments in their native format.
After such thirty (30) day period, AppNeta shall have no obligation to maintain or provide any of Licensee’s Data and shall
thereafter, unless legally prohibited, delete all of Licensee’s Data in AppNeta’s systems or otherwise in AppNeta’s possession
or under control. Any additional services provided by AppNeta related to the return of Licensee’s data shall be billed at the
then-current professional services rates. Termination of this Agreement will not limit either party from pursuing other
remedies available to it, including injunctive relief, nor will such termination relieve Licensee’s obligation to pay all fees that
have accrued or are otherwise owed by Licensee for the balance of the then-current term. Any provisions providing for
limitations on liability, and those terms which by their nature were intended to survive any termination of this Agreement shall
so survive.
8. Indemnification. AppNeta shall (a) defend Licensee from and against any third party claim that the Product infringes a
United States patent, copyright, trademark, or other intellectual property right of such third party, and (b) pay the resulting cost
and damages finally awarded against Licensee by a court of competent jurisdiction or the amount stated in a written settlement
signed by AppNeta. The foregoing obligations are contingent upon Licensee providing AppNeta with: (i) prompt notice of
such claim (and in any event notice in sufficient time for AppNeta to respond without prejudice); (ii) the exclusive right to
control, direct, and perform the investigation, defense, or settlement of such claim; and (iii) such assistance as may be
reasonably requested by AppNeta at AppNeta’s expense. If Licensee’s use of the Product is, or in AppNeta’s opinion is likely
to be, enjoined, or if required by settlement, or if commercially advisable, AppNeta may: (x) substitute for the infringing
element of the Product functionally similar technology; (y) procure for Licensee the right to continue using the Product; or, (z)
terminate this Agreement and refund to Licensee that portion of the subscription license fee prepaid for the then-current
Subscription Term which reflects the unused prepaid portion of such term. The foregoing defense and indemnification
obligations of AppNeta shall not apply to the extent the alleged infringement arises out of the use or combination of the
Product with other non-AppNeta Product, services, or processes, or any unauthorized use of the Product. THIS SECTION
STATES LICENSEE’S SOLE AND EXCLUSIVE REMEDY AND APPNETA’S ENTIRE LIABILITY FOR THIRD PARTY
INFRINGEMENT CLAIMS
9. Limitation of Damages. IN NO EVENT SHALL APPNETA BE LIABLE TO OR THROUGH LICENSEE, BASED ON
ANY THEORY OF LAW, EQUITY, TORT, CONTRACT OR OTHERWISE FOR SPECIAL, INDIRECT, INCIDENTAL,
PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF
REVENUE, LOSS OF USE, LOSS OF LICENSEE DATA, OR COSTS OF COVER, ARISING OUT OF THE
PERFORMANCE OR NON-PERFORMANCE OF THE PRODUCT OR THE PROVISION OF SERVICES HEREUNDER
OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, EVEN IF APPNETA WAS ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE WARRANTY REMEDY FAILS IN ITS ESSENTIAL
PURPOSE. APPNETA’S TOTAL LIABLITY UNDER THIS AGREEMENT FOR ANY CLAIMS OR DAMAGES OF ANY
KIND AND BASED ON ANY THEORY OF LAW, EQUITY, TORT, CONTRACT OR OTHERWISE, SHALL NOT
EXCEED, WITH ALL CLAIMS AGGREGATED, THE TOTAL AMOUNT OF THE SERVICE AND LICENSE FEES PAID
BY LICENSEE DURING THE TERM IN WHICH THE CLAIM(S) AROSE. ANY CLAIM BY LICENSEE SHALL BE
BROUGHT WITHIN 12 MONTHS FOLLOWING THE EVENT GIVING RISE TO THE SAME.
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10. Confidentiality. Each party acknowledges that by reason of the relationship created between the parties by this
Agreement, it may have access to certain non-public information of substantial value concerning the other party's business,
operations, strategic plans, customers, suppliers, technology, competition and employees (“Confidential Information”), which
value would be impaired if such Confidential Information were disclosed to third parties or used other than for purposes
expressly authorized hereunder. Without limiting the foregoing, but for avoidance of doubt the terms of this Agreement, and
any performance, warranty and like information relating to the Product (by whomsoever generated or communicated) will be
considered the Confidential Information of AppNeta. Accordingly, each party agrees (a) to maintain all Confidential
Information received from the other, in whatever form disclosed, in strict confidence, (b) not to disclose or otherwise make
available such Confidential Information to any third party without the prior written consent of the disclosing party, and (c) not
to use the Confidential Information of the other party except as required in the performance of its obligations or the exercise of
its rights hereunder. The foregoing obligations shall not apply to Confidential Information of a disclosing party that, as can be
reasonably demonstrated with admissible evidence by the receiving party: (i) is or becomes a matter of public knowledge
though no action or omission of the receiving party; (ii) was rightfully in the receiving party’s possession without restrictions
on use or disclosure prior to its disclosure by the disclosing party; (iii) is rightfully obtained by the receiving party without an
obligation of confidentiality from a third party who has no obligation of confidentiality, direct or indirect, to the disclosing
party; (iv) is independently developed by the receiving party without reference to the disclosing party’s Confidential
Information; or (v) is required to be disclosed by a court or other authorized tribunal, and then only to the extent of such
requirement and only after given prompt notice of the requirement to the disclosing party. Upon the written request of the
disclosing party (subject to each party’s rights, during the Term, to retain a copy of the other’s Confidential Information solely
for purposes of performing its obligations and exercising its rights hereunder) or upon any termination of this Agreement, the
receiving party shall (a) immediately return to the disclosing party or destroy all copies and partial copies of the disclosing
party’s Confidential Information, whether maintained in tangible, electronic or other form (including permanently erasing any
portions thereof from computers and systems) and (b) provide the disclosing party with written certification of its compliance
with the terms of this section. Each party acknowledges that any breach of any of its obligations with respect to the other
party's Confidential Information may cause or threaten irreparable harm to such party. Accordingly, each party agrees that in
such event, the aggrieved party shall be entitled to seek equitable relief in any court of competent jurisdiction without the
necessity of posting bond and in addition to such other remedies as may be available to the aggrieved party under law or in
equity.
11.
General
(a) All notices required or permitted under this Agreement shall be in writing and shall be sent by hand, overnight courier or by
facsimile (in each case with confirmation of receipt). Notices shall be deemed delivered on the date of delivery, if delivery
occurs within normal business hours or on the next business day if delivery occurs outside of normal business hours. All
communications will be sent to the respective addresses first set forth above or to such other address as may be designated by a
party by giving written notice to the other party pursuant to this Section 11. (b) Licensee may not assign this Agreement or any
of its licenses, rights or duties under this Agreement, whether by operation of law or otherwise, without the prior written
consent of AppNeta; provided however, that Licensee may, assign this Agreement to an affiliate of Licensee or to a third party
to whom Licensee has assigned all or substantially all of its assets or control, or as a result of a sale or merger or consolidation,
in each case provided that (i) such assignee has agreed who agrees in writing to be bound by the terms herein, (ii) the assignee
is not a direct competitor of AppNeta, (iii) Licensee is current in its payments hereunder, and (iv) Licensee provides notice of
such assignment to AppNeta either prior to or promptly following the effective date of such assignment. Subject to the
previous sentence, the rights and liabilities of the parties hereto will bind and inure to the benefit of their respective successors
and assignees. (c) A waiver shall only be deemed to have been made if expressed in writing by the party granting such waiver
and shall not be construed as a waiver of future performance of any such term. (d) Neither party will be liable for any failure
or delay in its performance under this Agreement (or the performance of or access to the Software), other than payment
obligations, due to causes that are beyond its reasonable control, including, but not limited to, an act of God, act of civil or
military authority, fire, epidemic, flood, earthquake, riot, war, terrorism, sabotage, and governmental action; provided that the
delayed party: (i) gives the other party written notice of such cause promptly; and (ii) uses its reasonable efforts to correct such
failure or delay. (e) This Agreement constitutes the entire understanding between the parties, and supersede all prior
discussions, representations, understandings, or agreements (including any pre-existing nondisclosure agreement, except as to
its surviving terms and with respect to information disclosed under that agreement), whether oral or in writing, between the
parties with respect to the subject matter of this Agreement. Any modification or amendment to this Agreement must be in
writing and signed by each party’s authorized representatives. No terms in any purchase order or other document delivered by
Licensee shall be deemed to amend the terms of this Agreement and any such additional or inconsistent terms shall be deemed
unacceptable to and rejected by AppNeta. If any provision of this Agreement shall be held by a court of law of competent
jurisdiction to be unenforceable, the remaining provisions shall remain in full force and effect and, to the extent allowed and
practicable, the unenforceable provision shall be modified so as to be enforceable consistent with its original intent and
economic effect. The headings and captions used in this Agreement are for convenience only, and shall not affect the
interpretation of the provisions of this Agreement. The word “including” shall be construed non-exclusively, to mean
“including but not limited to.” The word “or” shall be construed inclusively, to mean that one or more of the options may
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occur. This Agreement and any amendment hereto may be executed in counterparts, each of which shall be deemed an original
and both of which together shall constitute one instrument. (f) If Licensee is an agency of the United States Government, or
the license granted hereunder is pursuant to a contract with either a defense or civilian agency of the United States
Government, Licensee agrees that the Product is provided with the commercial license rights stated herein and as set forth in
FAR 52.244.6 and DFAR 227.7202.4, as applicable, or in successor provisions, as well as the terms set forth in this
Agreement. (g) The Product is subject to United States export laws and administrative regulations. The Licensee agrees not to
export or re-export the Product to: (A) to any country or region to which the United States has embargoed or restricted the
export of goods or services, which currently include, but are not necessarily limited to Cuba, Iran, Iraq, Libya, North Korea,
Sudan, the Taliban and Syria, or to any national of any such country or region, wherever located, who intends to transmit or
transport the Product back to such country or region; (B) to any person or entity who the Licensee knows or has reason to know
will use the Product in the design, development or production of nuclear, chemical or biological weapons; or (c) to any person
or entity who has been prohibited from participating in United States export transactions by any federal agency of the United
States government. (h) Licensee agrees to make reasonable efforts to act as a customer reference for AppNeta and shall, upon
AppNeta’s reasonable request, participate in white papers about Licensee’s use of the Product. In addition, AppNeta shall be
entitled to include Licensee on AppNeta’s published customer lists. (i) The relationship of AppNeta and Licensee established
by this Agreement is that of independent contractors, and nothing contained in the Agreement will be construed to constitute
the parties as partners, joint venturers, co-owners, or otherwise as participants in a joint undertaking. (j) During the term of the
Agreement and for a period of one (1) year after termination or expiration, the Licensee will maintain complete records
regarding the Licensee’s use of the Product. To ensure compliance with the terms of this Agreement, upon request, the
Licensee will provide AppNeta with a report of the Licensee’s use of the Product. The Licensee will allow AppNeta reasonable
access to Licensee’s computer systems, books and records during regular business hours to permit AppNeta to verify the
Licensee’s use of the Product and its compliance with this Agreement. In the event any such audit reveals that the Licensee has
underpaid AppNeta by an amount greater than five percent (5%) of the amounts due AppNeta in the period being audited, or
that the Licensee has knowingly breached any material obligation hereunder, then, in addition to such other remedies as
AppNeta may have, the Licensee will pay or reimburse to AppNeta the cost of the audit. (k) This Agreement shall be governed
by and construed under the laws of the Commonwealth of Massachusetts without regard to its conflict of law provisions. The
prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection
with such action.
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