Galaxy Early Access Agreement

STARBURST HAS AGREED TO MAKE ITS NEW GALAXY SOFTWARE PRODUCT (“GALAXY”) AND RELATED USER DOCUMENTATION (“DOCUMENTATION”) AVAILABLE TO EARLY ACCESS PARTICIPANTS AT NO CHARGE FOR EVALUATION AND FEEDBACK PURPOSES ONLY (THE “EARLY ACCESS PROGRAM”).

GALAXY AND INFORMATION AND DOCUMENTATION RELATED THERETO ARE HIGHLY CONFIDENTIAL AND PROPRIETARY INFORMATION OF STARBURST, AND STARBURST HAS AGREED TO MAKE GALAXY AVAILABLE ONLY TO TRUSTED EARLY ACCESS PARTICIPANTS WHO RECOGNIZE THE IMPORTANCE AND VALUABLE NATURE OF THE PRODUCT TO STARBURST.

THIS GALAXY EARLY ACCESS AGREEMENT (THE “AGREEMENT”) IS A BINDING AGREEMENT BETWEEN YOU AND STARBURST DATA, INC., A DELAWARE CORPORATION WITH A BUSINESS ADDRESS AT 177 HUNTINGTON AVE, SUITE 1703, PMB 82089, BOSTON, MA 02115-3153, USA (“STARBURST”). PLEASE CAREFULLY READ THIS AGREEMENT BEFORE ACCESSING, DOWNLOADING OR OTHERWISE USING GALAXY AND DOCUMENTATION.

BY CLICKING ON THE “ACCEPT” BUTTON OR USING GALAXY, YOU ARE STATING THAT YOU HAVE READ THIS AGREEMENT, AGREE TO ALL OF ITS TERMS, AND CONSENT TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “DO NOT ACCEPT” BUTTON AND/OR DO NOT ACCESS, DOWNLOAD OR USE GALAXY AND DOCUMENTATION.

IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT: (I) YOU HAVE FULL LEGAL AUTHORITY TO BIND YOUR EMPLOYER, OR THE APPLICABLE ENTITY, TO THE AGREEMENT; (II) YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; AND (III) YOU AGREE, ON BEHALF OF THE PARTY THAT YOU REPRESENT, TO THIS AGREEMENT.

ACCEPTANCE OF THIS AGREEMENT IS REQUIRED AS A CONDITION TO PROCEEDING WITH ACCESS AND USE OF GALAXY AND DOCUMENTATION. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THE AGREEMENT OR IF YOU DO NOT HAVE THE LEGAL AUTHORITY TO BIND YOUR EMPLOYER OR THE APPLICABLE ENTITY, YOU MUST NOT USE OR ACCESS GALAXYAND DOCUMENTATION.

IN CONSIDERATION OF THE PREMISES AND THE MUTUAL COVENANTS CONTAINED HEREIN, YOU AND STARBURST HEREBY AGREE AS FOLLOWS:

1. “Confidential Information” shall mean any proprietary, confidential information (whether or not patentable or copyrightable, any whether or not currently patented or copyrighted) which is owned or controlled by either Party and its affiliates, agents, subcontractors, suppliers, partners and representatives, including without limitation trade secrets, know-how, designs, product samples, product formulations, prototypes, data, processes, formulas, methods, materials, analyses, technology, manufacturing techniques, pricing, and financial, customer, supplier, sales and marketing information. Galaxy and related information and documentation are the Confidential Information of Starburst. This Agreement shall govern without regard to the manner of preparation, transmittal or storage of such Confidential Information, including but not limited to physical devices or materials, electronic devices or media, magnetic media, optical media or any other method.

2. Each Party represents that to the best of its knowledge it has the right to disclose its Confidential Information to the other without conflict with, or violation of the rights of, any third party.

3. Except as provided in Sections 4 and 5 below, all Confidential Information shall for a period of five (5) years from the Effective Date or from the date of disclosure, whichever is later, be held in confidence by the receiving Party and not be used except for the Early Access Program, without the prior written approval of the disclosing Party; provided, however, that Confidential Information may be disclosed by a receiving Party to those of its and its partners’, affiliates’ and subcontractors’ employees, representatives and agents who absolutely and specifically require knowledge thereof in connection with the Early Access Program and who are obligated to protect the confidentiality thereof to the same extent as the receiving Party’s obligations under this Agreement. The receiving Party shall take all necessary and reasonable precautions to prevent the unauthorized disclosure or use of the Confidential Information by any such employees or agents and shall be responsible for any breach of this Agreement by its employees and agents.

4. The provisions of Section 3 hereof shall not apply to information which (i) was in the public domain or generally available to the public prior to receipt thereof by the receiving Party from the disclosing Party, or which subsequently becomes part of the public domain or generally available to the public other than as a result of a breach of this Agreement by the receiving Party or an employee or agent of the receiving Party; (ii) was in the possession of the receiving Party prior to receipt from the disclosing Party, as evidenced by the receiving Party’s written records; (iii) is later received by the receiving Party from a third party on a non-confidential basis, unless the receiving Party knows or has reason to know of an obligation of confidentiality (contractual, legal, fiduciary or otherwise) of the third party to the disclosing Party with respect to such information, or; (iv) is independently developed by the receiving Party without reference to or reliance upon the Confidential Information received from the disclosing Party, as evidenced by the receiving party’s written records.

5. Notwithstanding anything to the contrary contained in this Agreement, Confidential Information may be disclosed by a receiving Party as required by applicable law, legal process or stock exchange rule, provided the receiving Party notifies the disclosing Party prior to such disclosure so as to afford the disclosing Party a reasonable opportunity to object or seek an appropriate protective order with respect to such disclosure.

6. Starburst will provide reasonable support for Galaxy as determined in Starburst’s sole discretion.

7. The receiving Party shall not reverse engineer, decompile, modify, copy, or create derivative works of any Confidential Information for any purpose. This Agreement shall not be construed to grant to the receiving Party any patent license, know-how license or any other rights except as specifically provided herein.

8. This Agreement shall be effective as of the Effective Date above and shall terminate upon the earlier to occur of (a) the one (1) year anniversary of such date, or (b) the delivery of written notice of termination by either Party to the other Party; provided, however, that the obligations of a receiving Party pursuant to Section 3 shall remain in effect for the term specified therein. Either party may terminate its participation in the Early Access Program at any time upon ten (10) days written notice to the other Party. The receiving Party shall, upon the request of the disclosing Party, and in any event upon termination of this Agreement, return to the disclosing Party all products, software, drawings, documents, designs, product samples, prototypes and other tangible manifestations of the Confidential Information received by the receiving Party pursuant to this Agreement, together with all copies and reproductions thereof.

9. Neither Party makes any representation, warranty, assurance, guarantee or inducement, express or implied, with respect to information supplied hereunder, including without limitation freedom from patent or copyright infringement. Starburst does not make any express or implied warranties regarding Galaxy, including without limitation its performance, operation and functionality. Except for Starburst’s breach of its confidentiality obligations under this Agreement, in no event shall Starburst be liable for any direct, consequential, indirect, special, exemplary, or incidental damages, including without limitation lost profits, revenues, income, business or data, even if Starburst is aware of the possibility of such damages or is negligent, and regardless of the basis of the claims.

10. Whenever, by the terms of this Agreement, notice, demand or other communication shall or may be given to either party, the same shall be in writing and addressed to such party at its address first set forth above, or to such other address or addresses as shall from time to time be designated by written notice by such party to the other as herein provided. All notices shall be sent by registered or certified mail, postage prepaid and return receipt requested, or by Federal Express or other comparable courier providing proof of delivery, and shall be deemed duly given and received (i) if mailed, on the third business day following the mailing thereof, or (ii) if sent by courier, the date of its receipt (or, if such day is not a business day, the next succeeding business day).

11. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without giving effect to its principles of conflicts of laws. Both Parties hereby irrevocably consent to the exclusive jurisdiction of the state and federal courts located in the Commonwealth of Massachusetts in any action arising out of or relating to this Agreement and waive any other venue to which they may be entitled by domicile or otherwise.

12. The Parties acknowledge that damages in the event of a receiving Party’s breach of this Agreement will be difficult to ascertain, and it is therefore agreed that the disclosing Party, in addition to, and without limiting, any other remedy or right it may have, shall have the right to seek equitable relief, including without limitation injunctive relief, issued by a court of competent jurisdiction.

13. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and shall not be supplemented, amended, varied or modified in any manner except by an instrument in writing signed by duly authorized representatives of both Parties. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and assigns. The individuals executing this Agreement hereby represent and warrant that they are empowered and duly authorized to so execute this Agreement on behalf of the Parties they represent.