PURCHASE AGREEMENT

This Affectiva Purchase Agreement (the “Agreement”) is by and between Affectiva, Inc., a Delaware corporation (“Affectiva”) and the entity which has been identified as the Customer (the “Company”) in an Affectiva order form (“Order”), which has been physically or electronically signed by an authorized representative of Company and which has been accepted by Affectiva. Acceptance by Affectiva may be evidenced by written notice of acceptance by Affectiva and/or delivery of the products and provision of the services specified in the Order. The effective date of this Agreement and each Order (“Effective Date”) shall be the date the Order is accepted by Affectiva.

1. Products. Company agrees to purchase each of the Affectiva products listed in the Order (“Products”) for the amounts specified in the Order. Products may consist of either: (a) Hardware, including Q-Sensors, which will be delivered to Company by Affectiva, (b) Software, which will be licensed to Company in accordance with the software license in Section 5(a), or (c) Services, including cloud-based applications hosted by Affectiva and accessed by Company through the Internet (“Cloud Services”), warranty, maintenance or support services (“Support Services”), or design, development or configuration services (“Professional Services”).

2. Fees. Company shall pay to Affectiva the total fees specified in the Order, and all related taxes or levies (exclusive of taxes based on the net income of Affectiva). Unless specified otherwise in the Order, Hardware can be purchased for a one-time fee, subject to any additional fees for associated Support Services. Cloud Services and Support Services are purchased on a subscription basis for a specified term. The subscription for Cloud Services and Support Services will automatically renew for successive terms of equal length, unless Company or Affectiva sends written notice of termination to the other at least 30 days prior to the expiration of the then-current term. Professional Services will be specified in a Statement of Work signed by both parties. Fees shall be due Net 30 days from the Effective Date of the Order unless specified otherwise in the Order. Prices are subject to change immediately and without notice; provided, however, that price changes will not be effective on Hardware, Software and Professional Services on any accepted Orders and will be effective on subscription services (Cloud Services and Support Services) on the first renewal date after the price change is announced.

3. Product Use. Company shall only use the Products in connection with the uses set forth in this Section 3 (the “Permitted Uses”) and agrees that it shall not use the Products for any other uses without prior consent from Affectiva. Company acknowledges and agrees that the Products (i) are sold subject to the limited warranty in Exhibit A, (ii) are to be used in compliance with all applicable laws and in accordance with any written instructions provided by Affectiva, (iii) are to be used solely in connection with Company’s internal research activities and/or by Company’s employees, agents and consultants only in conjunction with Company’s business and activities, and (iv) shall not be resold, sub-licensed, transferred or otherwise distributed by Company or its employees, consultants or agents to any third party.

4. Termination. Each party may terminate this Agreement and/or any Order in the event the other party breaches the Agreement and fails to cure such breach within thirty (30) days of written notice thereof. Upon termination, Company will return all Affectiva Hardware, Software and documentation to Affectiva in its possession or control.

5. Intellectual Property.

(a) Upon receipt of all fees due here under, Affectiva grants to Company a limited, non-exclusive, non-transferable right and license to use the Software solely in conformance with the Permitted Uses for the period specified in the Order.

(b) Upon receipt of all fees due here under, Affectiva grants to Company a limited, non-exclusive, non-transferable right and license to use the Cloud Services solely in conformance with the Permitted Uses for the period that the subscription for those Cloud Services remains in effect.

(c) All right, title and interest in and to the intellectual property embodied in the Products, together with any derivative works, improvements, enhancements or other modifications thereto (collectively, the “Intellectual Property”), is owned by, and shall remain the property of Affectiva, including, without limitation, any patents, copyrights, trademarks, tradenames and logos of Affectiva. Company shall not, and shall not permit others to, (i) modify, copy, reverse engineer, decompile, disassemble, reproduce, or attempt to derive any source code, algorithms, architecture or user interface techniques associated with, the Intellectual Property, either in whole or in part, or (ii) create any derivative works from the Intellectual Property or the Products. With respect to any suggestions or recommendations by Company to Affectiva, regarding proposed additional features, functionality, performance options or other modifications to Affectiva Products, Company grants to Affectiva a worldwide, non-exclusive, royalty-free, perpetual right and license to develop, distribute, sublicense, sell, use or exploit such suggestions or recommendations, including without limitation the integration of such features and functionality, in whole or in part, into Affectiva’s products or services without the need to account for the same to Company. Company acknowledges that any and all products or services incorporating such new features, functionality, or performance shall be the sole and exclusive property of Affectiva.

(d) Affectiva will defend, indemnify and hold harmless Company in connection with any third party claims asserted against Company alleging that the Intellectual Property, in the form originally supplied by Affectiva to Company in the Products, infringes such third party’s intellectual property rights (“IP Claims”). Such indemnification shall not apply to any claims of infringement or alleged infringement of a third party’s intellectual property rights to the extent that such claims are based on Company’s breach of this Agreement, combination of the Products with another product or to the extent the Products were modified in any way by Company if such infringement could have been avoided without such breach, combination or modification. In the event of any IP Claim being made or action brought against Company with respect to which Affectiva is liable to indemnify Company hereunder, Company shall promptly notify Affectiva thereof but in no event more than one week after first receiving notice of such IP Claim and Affectiva shall be entitled to assume, control and conduct the defense of such IP Claim, including the settlement or compromise thereof; provided, however, that Affectiva shall not settle or compromise such IP Claim without the prior written consent of Company, which consent shall not be unreasonably withheld or delayed; and provided further that such consent shall not be required if Company receives a full release from liability in connection with such compromise or settlement.

6. Limited Warranty. AFFECTIVA WARRANTS FOR ONE (1) YEAR FROM DELIVERY THAT HARDWARE AND SOFTWARE PRODUCTS WILL PERFORM SUBSTANTIALLY AS DESCRIBED IN THE ACCOMPANYING DOCUMENTATION. IN THE EVENT OF A BREACH OF THIS WARRANTY, COMPANY’S SOLE RIGHT AND AFFECTIVA’S SOLE OBLIGATION IS, AT AFFECTIVA’S SOLE DISCRETION, TO REPAIR OR REPLACE THE NON-CONFORMING PRODUCT OR ACCEPT RETURN OF THE PRODUCT AND PROVIDE A REFUND. AFFECTIVA WARRANTS THAT CLOUD SERVICES WILL PERFORM SUBSTANTIALLY AS DESCRIBED IN THE ACCOMPANYING ON-LINE DOCUMENTATION. IN THE EVENT OF A BREACH OF THIS WARRANTY, COMPANY’S SOLE RIGHT AND AFFECTIVA’S SOLE OBLIGATION IS, AT AFFECTIVA’S SOLE DISCRETION, TO REPAIR OR REPLACE THE NON-CONFORMING CLOUD SERVICES OR TO PERMIT COMPANY TO TERMINATE COMPANY’S SUBSCRIPTION TO THE NON-CONFORMING CLOUD SERVICES. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6, COMPANY’S USE OF THE PRODUCTS IS AT THE COMPANY’S SOLE RISK AND COMPANY ACCEPTS THE PRODUCTS "AS IS" AND “AS AVAILABLE”. AFFECTIVA HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

7. Limitation of Liability. EXCEPT AS SET FORTH BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE OR THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. The limitations of liability set forth herein shall not be applicable to damages resulting from the willful misconduct or gross negligence of a party or use of the Products in violation of this Agreement. The parties further agree that Affectiva’s maximum liability pursuant to this Agreement shall be limited to the total fees paid by Company to Affectiva in the previous twelve (12) months.

8. Indemnification; Export Control; Restricted Rights. Company agrees to indemnify, defend and hold harmless Affectiva, its subsidiaries, affiliates, officers, directors, employees, contractors and agents (the “Indemnified Parties”) from and against any losses, damages, liabilities, judgments, settlements, fines, penalties, claims, suits, costs and expenses, including reasonable legal fees (“Claims”), to the extent that they arise out of or are related to; (i) Company’s use of the Products in a manner not permitted under this Agreement, (ii) Company’s use of the Products in conjunction with products, software, or services not provided by Affectiva, if a claim would not have arisen but for such combination, or (iii) Affectiva’s compliance with Company’s designs, specifications, requests, or instructions. Notwithstanding the foregoing, Company shall have no obligation or liability to the extent a Claim arises solely from Affectiva’s gross negligence or willful misconduct. Company acknowledges that the Products are subject to U.S. export control laws and regulations. Company represents that it is not a citizen of an embargoed country or prohibited end user under applicable U.S. export and anti-terrorism laws, regulations and lists. U.S. GOVERNMENT RESTRICTED RIGHTS: Our Products and/or services are provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions set forth in subparagraphs (a) through (d) of the Commercial Computer Software—Restricted Rights at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, and in similar clauses in the NASA FAR supplement, as applicable.

9. Confidentiality. Company agrees it shall not, directly or indirectly, use or disclose to others any Confidential Information belonging to Affectiva without Affectiva’s prior written consent. As used herein, “Confidential Information” shall mean any information, whether written or oral, regarding this Agreement, Affectiva’s products or business, and any Intellectual Property or any other information obtained by Company from Affectiva that is not generally known to the public. Confidential Information shall not include any information that (i) was publicly available at the time of disclosure by Affectiva, (ii) became publicly available after disclosure by Affectiva through no fault of Company, (iii) was acquired by Company after disclosure by Affectiva from a third party who was under no legal duty to maintain the confidentiality of the information or (iv) is required to be disclosed pursuant to court order or other governmental process; provided that Company shall give notice to Affectiva prior to such disclosure and cooperate with Affectiva, at Affectiva’s expense, in any of Affectiva’s efforts to limit such disclosure.

10. Governing Law and Arbitration. This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without reference to its conflict of laws rules. Any dispute, claim, or controversy arising out of or relating to this Agreement (including, the validity, interpretation, application, termination, alleged breach, or enforcement of the Agreement) shall be determined by arbitration in Boston, Massachusetts, before a single arbitrator. The arbitration shall be administered by JAMS, in English, pursuant to its Comprehensive Arbitration Rules and Procedures then in effect. The arbitrator shall, in the Award, award the prevailing party reasonable costs incurred in connection with the arbitration, including the fees of the arbitrator, and the prevailing party’s reasonable attorneys’ fees, experts’ fees, and expenses. Judgment on the Award shall be entered only in the state or federal courts in Massachusetts. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration, although such relief may be sought only from a state or federal court in Suffolk County Massachusetts. The parties hereby consent and submit to, and waive any and all objections to, the jurisdiction and venue of the state and federal courts in Suffolk County, Massachusetts.

11. Survival. All provisions except Section 5(a) and (b) of this Agreement, shall survive the termination or expiration of this Agreement.

12. General Conditions. The parties to this Agreement are independent contractors, and this Agreement shall not be construed to create a partnership, joint venture, employment or agency relationship between the parties. This Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding any prior agreements and communications (both written and oral) regarding such subject matter. This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties. Company may not assign this Agreement, or any of its rights or obligations hereunder, to any third party without Affectiva’s prior written consent, which consent shall not be unreasonably withheld. In the event that any of the provisions of this Agreement are held by to be unenforceable by a court or arbitrator, the remaining portions of this Agreement will remain in full force and effect. Company shall be responsible for any breach of this Agreement by any of its employees, consultants and agents. The rights and remedies provided herein and all other rights and remedies at law or in equity shall be, to the extent permitted by law, cumulative and not exclusive of any other right or remedy now or hereafter available at law or in equity. Neither asserting a right nor employing a remedy shall be deemed to waive any other right or employment of any other remedy available herein.

Last update: December 6, 2011