In this task, you're given a passage that represents a legal contract or clause between multiple parties. Your job is to write questions that ask the basic details corresponding to the legal contracts or clauses. Avoid questions that can be answered correctly without actually understanding the paragraph, and which might have multiple answers. The answer to each question should be unambiguous.

[Q]: Exhibit 10.26    CONFIDENTIAL TREATMENT HAS BEEN REQUESTED AS TO CERTAIN PORTIONS OF THIS DOCUMENT. EACH SUCH PORTION,  WHICH HAS BEEN OMITTED HEREIN AND REPLACED WITH AN ASTERISK [*], HAS BEEN FILED SEPARATELY WITH THE  SECURITIES AND EXCHANGE COMMISSION.     PROMOTION AND DISTRIBUTION AGREEMENT     This Promotion and Distribution Agreement including all exhibits (collectively referred to as the Agreement), effective as of 1 August 2011 (the  Effective Date), is made by and between Whitesmoke Inc., with registered offices/principle place of business at 501 Silverside Road, Suite 105,  Wilmington DE 19809, USA, (Distributor), and Google Inc whose principle place of business is at 1600 Amphitheatre Parkway, Mountain View,  CA 94043, USA (Google).



   Bundle means the Distribution Products bundled with the Distributor App(s).     Chrome Browser means the machine-readable binary code version of the Google Chrome browser provided to Distributor in connection with  this Agreement, and any modifications or updates to it that Google may provide to Distributor.     Chrome Browser Installer means: (a) the machine-readable binary code version of the installer provided to Distributor in connection with this  Agreement that installs the Chrome Browser, and any modifications, updates or upgrades to it that Google may provide to Distributor; and (b) the  Chrome Browser Criteria Checker.     Chrome Use Event means an event that indicates an [* ] has occurred.     Chrome Server Communication means a communication that, as determined solely by Google, is sent for the purpose of indicating that an End  User: (a) is [* ] to the [* ]; and (b) has kept the [* ] open for a minimum of [* ] during a [* ] (whether during the [* ] or a [* ] of the Chrome  Browser).     Criteria Checker means a set of software routines (and any updates to them) provided to Distributor by Google, as part of a software library,  that check certain criteria (as determined by Google and modified by Google from time to time) to determine if the Chrome Browser or Google  Toolbar (as applicable) can be installed on an End User's operating system. Accordingly, Chrome Browser Criteria Checker means the Criteria  Checker provided by Google in respect of the Chrome Browser and Google Toolbar Criteria Checker means the Criteria Checker provided by  Google in respect of the Google Toolbar.     Distributor App(s) means the following application (and successor versions of such software): the trial version of the WhiteSmoke Writer  (currently called WhiteSmoke 2011) available on a worldwide basis, but for the avoidance of doubt shall not mean any other products of  Distributor, including without limitation the full paid version of Whitesmoke Writer or any version of Whitesmoke Translator software,  regardless of whether Whitesmoke Writer incorporates any translation functionality.     *Confidential treatment requested  Google Confidential

1. DEFINITIONS

1.1 In this Agreement unless expressly stated otherwise:

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   Distribution Products means:





   End User means an end user customer of Distributor who is located in the Territory.     EULA means the end user license agreement applicable to a Product, which end user license agreement may be updated or modified by Google in  its sole discretion from time to time.     False means a false response (or equivalent negative response) given by the Criteria Checker.     Google Program Guidelines means the policy and implementation guidelines applicable to the Products as updated by Google and provided to  Distributor from time to time.     Google Toolbar means the machine-readable binary code version of the Google toolbar for Internet Explorer provided to Distributor in  connection with this Agreement, and any modifications or updates to it that Google may provide to Distributor.     Google Toolbar Installer means: (a) the machine-readable binary code version of the installer provided to Distributor in connection with this  Agreement that installs the Google Toolbar, and any modifications, updates or upgrades to it that Google may provide to Distributor; and (b) the  Google Toolbar Criteria Checker.     Google Trademarks means all names, trade names, trademarks, and logos used by Google in connection with the Products.     Group Company means in relation to each of the parties:



   Install Completed occurs when an End User has completed the install process for a Bundle and the install completed screen is shown to the End  User in accordance with Exhibit B.



  (a) as at the Effective Date, the Google Toolbar Installer and the Chrome Browser Installer; and

  (b) if Distributor notifies Google at any time after the Effective Date that it wishes to bundle the full Google Toolbar and Google  provides its approval in writing (including email), the Google Toolbar; and

  (c) if Distributor notifies Google at any time after the Effective Date that it wishes to bundle the full Chrome Browser and Google  provides its approval in writing (including email), the Chrome Browser.

  (a) any parent company of that party; and

  (b) any corporate body of which that party directly or indirectly has control or which is directly or indirectly controlled by the same  person or group of persons as that party.

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  Intellectual Property Rights means all copyright, moral rights, patent rights, trade marks, design right, rights in or relating to databases, rights in  or relating to confidential information, rights in relation to domain names, and any other intellectual property rights (registered or unregistered)  throughout the world.     IPO means an initial public offering of all or any of the shares in Distributor or securities representing those shares for the purposes of being  publically traded or quoted on an investment exchange.     Maximum Distribution Commitment means [* ] , as may be increased by Google pursuant to Clause 4.2 (Maximum Distribution Commitment).     [ * ] means a [ * ] or [ * ] entered by the [ * ] into the [ * ] located at the [ * ] of the [ * ]. [ * ] do not include the events listed in Clause 3.9(c)(ii).     Products means the Google Toolbar, Google Toolbar Installer, Chrome Browser and Chrome Browser Installer.     [ * ] means the [ * ] received by a [ * ] that, as determined solely by [ * ]: (a) is [ * ] by a [ * ] obtained via a [ * ]; (b) is the next [ * ] that occurs  following a [ * ]; and (c) includes the [ * ]. [ * ] only include those [ * ] which meet the requirements set out in Clause 3.9(c)(iii).     [ * ] means a [ * ] received by [ * ] that, as determined solely by [ * ]: (a) is [ * ] by a [ * ] obtained via a [ * ]; (b) is sent for the [ * ] of indicating  that an [ * ]: (i) has opened [ * ] following installation of the [ * ], (ii) is [ * ] to the [ * ], and (iii) has [ * ] a [ * ] into the [ * ]; and (c) includes the  correct [ * ]. [ * ] only include those [ * ] which meet the requirements set out in Clause 3.9(c)(i).     Term means the earlier of: (a) the end of the two year period from the Effective Date to 31 July 2013; or (b) the last day of the calendar month  within which the Maximum Distribution Commitment is reached.     Territory means those countries listed in Exhibit A, excluding any territory or state prohibited under Clause 11.5.     True means a true response (or equivalent positive response) given by the Criteria Checker.





   *Confidential treatment requested  Google Confidential



1.2 In this Agreement, the words include and including will not limit the generality of any words preceding them.

2. LICENSE GRANTS AND RESTRICTIONS

2.1 Products License Grant. Subject to the terms and conditions of this Agreement, Google grants to Distributor a [* ] license during the  Term to: (a) bundle the Distribution Products, in machine-readable binary code format only, solely with Distributor App(s); (b) distribute  Bundles directly (or indirectly, subject to Clause 2.2 (Third Party Distribution)) to End Users in the Territory; (c) when indicated by the  applicable Criteria Checker and requested by the End User in accordance with clause 3.2 (Form of Distribution Offering), install the  Chrome Browser or the Google Toolbar (as applicable) on the End User's system using the Google Installers; and (d) reproduce (or have  reproduced by Third Party Distributors as defined in Clause 2.2 (Third Party Distribution)), the Distribution Products to the extent  necessary to exercise the rights granted in (a), (b) and (c).

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   *Confidential treatment requested  Google Confidential



2.2 Third Party Distribution. Distributor may distribute Bundles to third parties solely for redistribution of such Bundles by those third  parties directly to End Users (such third parties, Third Party Distributors); provided that: (a) in connection with any and all such  offers or distributions, Distributor shall, and shall ensure that each Third Party Distributor shall, distribute Bundles in a manner that is no  less protective of the Products and Google than the terms of this Agreement, and (b) Google in its sole discretion may direct Distributor  to cease distributing Bundles to any Third Party Distributor that in Google's sole discretion would either: (i) harm or devalue Google's  business, brand or name, or (ii) violate Google's privacy policy, and Distributor shall cause any such Third Party Distributor to cease  distribution of Bundles as soon as practicable but in no event longer than [ * ] following receipt of such request from Google. Distributor  shall ensure that no Third Party Distributor bundles anything in or with Bundles without Google's prior written approval, and if Google  grants its approval, Distributor shall provide Google with information about any such bundling arrangements at Google's request.

2.3 License Grant Restrictions. Distributor shall not, and shall not allow any third party to (except to the extent that such prohibitions are  not permitted by law): (a) disassemble, de-compile or otherwise reverse engineer the Products or otherwise attempt to learn the source  code or algorithms underlying the Products; (b) modify the Products, create derivative works from or based on the Products; (c) except as  expressly set out in this Agreement, provide, sell, license, distribute, lease, lend, or disclose the Products to any third party; (d) use the  Products for timeshare, service bureau, or other unauthorised purposes; or (e) exceed the scope of any license granted to Distributor  under this Agreement.

2.4 Trademark License and Use. Subject to the terms and conditions of this Agreement, Google grants to Distributor a limited, [ * ] license  during the Term to use the Google Trademarks, in accordance with Google's trademark usage guidelines, solely to market and promote the  Products consistent with this Agreement, provided that all use of the Google Trademarks shall be subject to Google's prior review and  advance written consent. All uses of the Google Trademarks, and all goodwill associated therewith, shall inure solely to the benefit of  Google.

2.5 Trademark Restrictions. Distributor shall not remove, modify, adapt, or prepare derivative works of any Google Trademarks or Google  copyright notices, or other Google proprietary rights notices.

2.6 Updated Versions of Distribution Products. Google may request that Distributor distribute the latest version of the Distribution Products.  Distributor shall begin such distribution within [ * ] following Google's request.

3. DISTRIBUTION AND OTHER OBLIGATIONS

3.1 Delivery. Google shall deliver the Distribution Products electronically to Distributor at a [ * ] following the Effective Date and prior to  Launch (as defined in Clause 3.4 (Launch)).

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  User to review such EULA via a hyperlink to such EULA: and (c) a button on which each End User may click indicating agreement to the  terms of such EULA. In the event that an End User does not affirmatively agree to install the Google Toolbar or Chrome Browser, by  clicking on the button to agree to the terms of the applicable EULA, then the Google Toolbar or Chrome Browser (as applicable) shall not  be installed on such End User's computer.



   *Confidential treatment requested  Google Confidential



3.2 Form of Distribution Offering. Distributor shall ensure that the form of any offering of the Products by Distributor, including the timing,  relative and absolute placement, visual presentation to End Users, initial launch of the Products (and any modifications to them) and the  presentation of any other applications or products offered with the Products, conforms to the Google Program Guidelines and to Exhibit B  of this Agreement. Except as set out in Clause 2 (Licence Grant and Restrictions) and except for End Users as expressly set out in this  Agreement, Distributor shall not offer or distribute the Products to any third party. If, during the Term, Exhibit B and the Google Program  Guidelines conflict, Exhibit B will take precedence with respect to the conflicting terms.

3.3 Guidelines for Applications. Distributor shall comply, and shall ensure that each Third Party Distributor complies, with the Guidelines for  Applications set out in Exhibit C.

3.4 Launch. Distributor shall begin distribution of Bundles in accordance with this Agreement (Launch) within [ * ] days following the  Effective Date (the date of such Launch, the Launch Date). Beginning on the Launch Date and continuing throughout the Term,  Distributor shall ensure that [ * ]Distributor App distributed by or on behalf of Distributor is bundled with the Distribution Products as  set out in this Agreement.

3.5 Exclusivity.

  (a) [ * ]

  (b) [ * ].

3.6 EULA. In connection with Distributor's distribution of the Products under this Agreement, and before the Google Toolbar or Chrome  Browser can be installed by an End User, Distributor shall provide each End User with: (a) a clear statement inviting the End User to agree  to the terms of the applicable EULA; (b) the opportunity for each End

3.7 Accurate Reproduction. Distributor agrees that in connection with its exercise of the right granted in Clause 2.1 (Products Licence Grant)  it shall accurately reproduce the Distribution Products and shall not: (a) modify any Product (including modify the Chrome Browser or  Google Toolbar configuration files or registry settings); or (b) insert into the Products any viruses, worms, date bombs, time bombs, or  other code that is specifically designed to cause the Products to cease operating, or to damage, interrupt, or interfere with any Products  or End User data.

3.8 [ * ]. During the Term and for a period of [ * ] following the expiration or termination of this Agreement, Distributor shall not, and shall not  engage any third party to: (a) restrict, modify, or reconfigure in any manner any of the Products that have been installed by End Users  (such End Users, Installed Base End Users) in connection with this Agreement; or (b) engage in activities that encourage Installed  Base End Users to modify, uninstall or reconfigure any or the Products.

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   *Confidential treatment requested  Google Confidential



3.9  Reporting.

  (a) By Distributor. During the Term, Distributor shall, on a [ * ] basis, no later than the [ * ] of the following [ * ], provide Google  with a report identifying, on a country-by-country basis, the total number of: (i) Bundles distributed; (ii) Installs Completed; (iii)  Google Toolbar offers presented to End Users; and (iv) Chrome Browser offers presented to End Users, in the preceding [ * ].

  (b) By Google. During the Term, Google shall on a [ * ] basis, provide Distributor with a report of the [ * ] of [ * ] and [ * ] in the  preceding [ * ] broken down on a [ * ] basis and by the [ * ] in Exhibit A.

  (c) Parameters. Distributor acknowledges, and shall cooperate with Google to [ * ] that:

  (i) [ * ]: (A) are determined on a [ * ] (B) are only [ * ]; (C) do not include [ * ] from computers on which another [ * ] of the  [ * ] is [ * ]; and (D) do not include use of the [ * ] in any [ * ] other than [ * ].

  (ii) [ * ] do not include: (A) [ * ] that has been [ * ], (B) [ * ] or [ * ] in any area other than in the [ * ], or (C) any other [ * ] of  the [ * ] designed to artificially [ * ].

  (iii) [ * ]: (A) are determined on a [ * ]; (B) are only [ * ]; (C) are not sent in response to [ * ] from computers on which  another [ * ] of the [ * ] is [ * ]; and (D) are sent only in response to [ * ] from computers that meet the [ * ] requirements  as determined by the [ * ].

  (d) Records and Audit Rights. Distributor will keep and maintain complete and accurate books, records, and accounts relating to  this Agreement. During the Term, and for a period of [ * ] thereafter, Google may audit Distributor's relevant records to confirm  Distributor's compliance with this Agreement. Google's auditor will only have access to those books and records of Distributor  which are reasonably necessary to confirm such compliance.

4. PAYMENT TERMS

4.1 Payments. Subject to Clause 4.2, during the Term on a [ * ] basis, Google shall pay to Distributor the applicable payment set out in Exhibit  A for each [ * ] and each [ * ] that occurred during the previous [ * ]. Google shall determine the [ * ] in respect of which each [ * ] and  [ * ] took [ * ] (using the relevant [ * ]). Notwithstanding the foregoing, in no event will the [ * ] of [ * ] by Google to Distributor for all  [ * ] and all [ * ] in respect of [ * ] (as set out in Exhibit A) exceed [ * ] ([ * ]) of the [ * ] to Distributor for such [ * ].

4.2 [ * ]. Notwithstanding anything to the contrary, in no event shall the [ * ] paid or payable to Distributor by Google pursuant to Clause 4.1  (Payments) exceed the [ * ]. Google shall have the right, at its sole option, to increase the [ * ] by providing written notice to Distributor  no later than [ * ] prior to the end of the Term. The foregoing sentence shall not relieve Google of any payment obligations that have  accrued prior to the achievement of the [ * ].

4.3 Payment Terms. All payments under this Agreement shall be made in [ * ] in the [ * ] following the [ * ] for which the payments are  applicable. The party receiving payment will be responsible for any bank charges assessed by the recipient's bank. In addition to other  rights and remedies Google may have, Google may offset any payment obligations to Distributor that Google may incur under this  Agreement against any product or service fees owed to Google and not yet paid by Distributor under any agreement between Distributor  and Google. Google may also withhold and offset against its payment obligations under this Agreement, or require Distributor to pay to  Google within [ * ] of any invoice, any amounts Google [ * ] overpaid to Distributor in prior periods.

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   *Confidential treatment requested  Google Confidential



4.4 Taxes. All payments under this Agreement are exclusive of taxes imposed by any governmental entity. Google shall pay any applicable  taxes imposed by governmental agencies with respect to the transactions under this Agreement other than taxes based upon  Distributor's income. Google shall promptly provide to Distributor a copy of an official tax receipt or other appropriate evidence of any  taxes imposed on payments made under this Agreement. When Distributor has the legal obligation to collect any applicable taxes, the  appropriate amount shall be invoiced to and paid by Google unless Google provides Distributor with a valid tax exemption certificate  authorised by the appropriate taxing authority.

4.5 Interest. Distributor may charge interest at the rate of [ * ] above the base rate of Barclays Bank PLC from time to time, from the due date  until the date of actual payment, whether before or after judgment, on any payment pursuant to this Clause 4 (Payment Terms) which is  overdue.

5. TERM AND TERMINATION

5.1 Term. This Agreement shall commence on the Effective Date and, unless earlier terminated as set out in this Agreement, shall continue  for the Term.

5.2 Termination for breach. A party may suspend performance and/or terminate this Agreement, with immediate effect, if the other party:

  (a) is in material breach of this Agreement where the breach is incapable of remedy; or

  (b) is in material breach of this Agreement where the breach is capable of remedy and fails to remedy that breach within thirty (30)  days after receiving written notice of such breach.

5.3 Termination for insolvency. A party may suspend performance and/or terminate this Agreement with immediate effect, if:

  (a) the other party enters into an arrangement or composition with or for the benefit of its creditors, goes into administration,  receivership or administrative receivership, is declared bankrupt or insolvent or is dissolved or otherwise ceases to carry on  business; or

  (b) any analogous event happens to the other party in any jurisdiction in which it is incorporated or resident or in which it carries on  business or has assets.

5.4 Change of Control. [ * ] may terminate this Agreement immediately upon written notice if there is a Change of Control of [ * ]. In this  Clause the term Control shall mean the possession by any person(s) directly or indirectly of the power to direct or cause the direction  of another person and Change of Control is to be construed accordingly. [ * ] expected to experience, or [ * ] is experiencing, such  Change of Control shall notify [ * ] in writing of this before or within [ * ] after the Change of Control. If [ * ] has not exercised its right of  termination under this Clause within [ * ] following the later of (i) the receipt of notice of [ * ] Change of Control or (ii) the Change of  Control event, that [ * ]. The parties acknowledge that as at the Effective Date, [ * ] may [ * ] its [ * ]. [ * ] agrees not to exercise its  termination right under this clause 5.4 if [ * ], provided that following [ * ]:

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   For the avoidance of doubt, if following [ * ] there is a transfer of shareholding or interests in Distributor to any existing or new  shareholder(s) which results in any person or persons subsequently gaining Control of Distributor, then Google may exercise its right to  terminate in accordance with this clause 5.4..



   *Confidential treatment requested  Google Confidential



  5.4.1. no one person Controls [ * ] (other than an[ * ] which is not a [ * ] of [ * ] (as determined by [ * ]in its sole discretion)); and

  5.4.2. no [ * ] of [ * ] (as determined by [ * ] in its sole discretion) holds a [ * ] or [ * ] in [ * ].

5.5 Additional Termination Rights. Google may terminate this Agreement immediately upon written notice to Distributor if: (a) Distributor  breaches Clause 2 (License Grants and Restrictions), Clause 3.6 (EULA), Clause 3.7 (Accurate Reproduction), or Clause 6 (Confidential  Information), (b) if Google believes, in good faith, that the Distributor has violated or caused Google to violate any Anti-Bribery Laws (as  defined in Clause 8.5) or that such a violation is reasonably likely to occur, or (c) Distributor is in material breach of this Agreement more  than [ * ] notwithstanding any cure of such breaches. Notwithstanding anything to the contrary, in the event that the government or  controlling body of any country or territory in which Bundles are distributed imposes any law, restriction or regulation that makes it illegal  to distribute the Products, or any portion of them, into such country or territory, or if any such law, restriction or regulation places a  substantial burden on Google, where substantial is measured with respect to Google's economic benefit under this Agreement, as  determined by Google in its reasonable and good faith judgment (such substantial burden, a Substantial Burden) then either party or  Google (in the case of a Substantial Burden) may require the suspension of all distributions of Bundles in such country or territory until  such time as such law, restriction or regulation is repealed, nullified or modified such that it is no longer illegal or a Substantial Burden (in  the case of Google), as applicable, for Bundles to be distributed in such country or territory (Special Suspension); provided, however,  that Distributor's obligations under Clause 3.5 (Exclusivity) shall not apply in respect of the relevant country or territory during any  period of Special Suspension. If a period of Special Suspension extends for more than [ * ] may then terminate this Agreement (in part) in  respect of the affected country or territory only, such termination to take effect upon written notice[ * ]. [ * ] will use its reasonable  endeavours to provide [ * ] with [ * ] (to the extent it is practicable to do so) of the [ * ] or [ * ] (which was commenced by [ * ]).

5.6 Effect of Termination. Upon expiration or termination of this Agreement: (a) all rights and licenses granted under this Agreement shall  immediately cease; (b) Distributor shall (and shall ensure that any Third Party Distributors shall) immediately stop reproducing the  Products and offering or distributing Bundles; (c) Distributor shall return or destroy (and a duly appointed officer of Distributor shall  certify to such destruction) all copies of the Products and any other Google Confidential Information in its possession; and (d) the fees  payable to Distributor shall immediately cease accruing and Google shall within [ * ] following such expiration or termination pay to  Distributor any undisputed amounts which have accrued from the time of the most recent payment to Distributor through the date of  termination or expiration of this Agreement. Clauses 5.6 (Effect of Termination), 6 (Confidential Information), 7 (Proprietary Rights), 9  (Limitation of Liability), 10 (Indemnification) and 11 (General) shall survive the termination or expiration of this Agreement.

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   *Confidential treatment requested  Google Confidential



6. CONFIDENTIAL INFORMATION

6.1 In this Agreement, Confidential Information means information disclosed by (or on behalf of) one party to the other party under this  Agreement that is marked as confidential or, from its nature, content or the circumstances in which it is disclosed, might reasonably be  supposed to be confidential, including the terms and conditions (including the Exhibits) of this Agreement. It does not include  information that the recipient already knew, that becomes public through no fault of the recipient, that was independently developed by  the recipient or that was lawfully given to the recipient by a third party.

6.2 The recipient of any Confidential Information shall not disclose that Confidential Information, except to Group Companies, employees  and/or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise  bound) to keep it confidential. The recipient shall ensure that those people and entities: (a) use such Confidential Information only to  exercise rights and fulfill obligations under this Agreement, and (b) keep such Confidential Information confidential. The recipient may  also disclose Confidential Information when required by law, or the regulation or rule of a major US stock exchange or the United States  Securities and Exchange Commission, after giving reasonable notice to the discloser, such notice to be sufficient to give the discloser: (i)  the opportunity to seek confidential treatment, a protective order or similar remedies or relief prior to disclosure (if applicable) and (ii)  (where any disclosure is necessary) time to consult on and approve the form and content of the relevant disclosure. The parties shall then  promptly discuss and agree in good faith on the form and content of the disclosure (each acting reasonably).

7. PROPRIETARY RIGHTS

7.1 Distributor acknowledges that Google and/or its licensors own all right, title and interest, including all Intellectual Property Rights in and  to the Products and the Google Trademarks and all modifications to them. Distributor has, and shall acquire, no rights in the foregoing  except those expressly granted by this Agreement. Google shall not be restricted from selling, licensing, modifying, or otherwise  distributing the Products and/or the Google Trademarks to any third party.

7.2 Google acknowledges that Distributor and/or its licensors own all right, title and interest, including all Intellectual Property Rights, in and  to the Distributor Apps and all [ * ] to [ * ]. Except as expressly set forth in this Agreement, Distributor shall not be [ * ]from [ * ], or  otherwise [ * ]the Distributor App(s) or other products of Distributor to [ * ].

8. WARRANTIES

8.1 Each party warrants to the other that it will use reasonable care and skill in complying with its obligations under this Agreement.  Distributor also represents and warrants that it will undertake commercially reasonable endeavours in good faith to comply with Google's  business partner due diligence process including providing requested information.

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   *Confidential treatment requested  Google Confidential



8.2 Google warrants that the Distribution Products will for a period of [ * ] from the date of their supply to Distributor be free from any defect  which has a materially adverse effect on their use or operation.

8.3 If any of the warranties in Clause 8.1 or 8.2 is breached by Google, Distributor must tell Google as soon as possible. Distributor must give  Google a reasonable time to fix the problem and (if necessary) to supply Distributor with a corrected or replacement version of the  Distribution Product or a way to work-around the problem that is not materially detrimental to Distributor, or to re-perform any relevant  services. This will be done without any additional charge to Distributor. If Google is able to do this within a reasonable time, Google will  have no other obligations or liability in relation to that breach.

8.4 Google will not be liable for breach of any of the warranties or other terms in this Agreement to the extent that the breach arises from:

  (a) use of the Products other than in accordance with normal operating procedures;

  (b) any alterations or maintenance to the Products done by anyone other than Google or someone authorised by Google;

  (c) any problem with a computer on which the Products are installed, or with any equipment connected to that computer or any  other software which is installed on that computer;

  (d) any abnormal or incorrect operating conditions; or

  (e) use of the Products in combination with any other hardware or software, unless this use has been approved by Google in  writing.

8.5 Distributor will comply with all applicable commercial and public anti-bribery laws, including, without limitation, the UK's Bribery Act  2010 and the U.S. Foreign Corrupt Practices Act of 1977 (Anti-Bribery Laws), which prohibit (amongst other things) corrupt offers of  anything of value, either directly or indirectly, to a government official to obtain or keep business. ''Government officials include any  government employee, candidate for public office, and employee of government-owned or government-controlled companies, public  international organisations, and political parties. Furthermore, Distributor will not make any facilitation payments, which are payments to  induce officials to perform routine functions they are otherwise obligated to perform.

8.6 No conditions, warranties or other terms apply to the Products, [ * ] or to any other goods or services supplied under this Agreement  unless expressly set out in this Agreement. Subject to Clause 9.1, no implied conditions, warranties or other terms apply (including any  implied terms as to satisfactory quality, fitness for purpose or conformance with description).

9. LIMITATION OF LIABILITY

9.1 Nothing in this Agreement shall exclude or limit either party's liability for:

  (a) death or personal injury resulting from the negligence of either party or their servants, agents or employees;

  (b) fraud or fraudulent misrepresentation;

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   In this Clause 9.4, Contract Year means a period of one year starting on the Effective Date or the relevant anniversary of the Effective  Date (as appropriate). If the amount referred to in (b) above cannot be calculated accurately at the time the relevant liability is to be  assessed (the Applicable Time), it shall be calculated on a pro-rata basis as X/Y x Z. Where:     X = the total sum paid and payable to the Distributor pursuant to Clause 4 in the relevant Contract Year prior to the Applicable Time;     Y = the number of days elapsed in the relevant Contract Year prior to the Applicable Time; and     Z = 365     *Confidential treatment requested  Google Confidential



  (c) breach of any implied condition as to title or quiet enjoyment; and

  (d) misuse of confidential information.

9.2 Nothing in this Agreement shall exclude or limit either party's liability under Clause 10 (Indemnities), or Distributor's liability under Clause  2 (License Grants and Restrictions), Clause 3.5 (Exclusivity), Clause 3.6 (End User License Agreement) and Clause 3.7 (Accurate  Reproduction) or Clause [ * ].

9.3 Subject to Clauses 9.1 and 9.2, neither party shall be liable under this Agreement (whether in contract, tort or otherwise) for any:

  (a) loss of anticipated savings;

  (b) loss of business opportunity (which for the avoidance of doubt shall not include loss of advertising revenue);

  (c) loss of or corruption of data;

  (d) loss or damage resulting from third party claims; or

  (e) indirect or consequential losses;
     suffered or incurred by the other party (whether or not such losses were within the contemplation of the parties at the date of this  Agreement).

9.4 Subject to Clauses 9.1 and 9.2, each party's total liability under or in connection with this Agreement (whether in contract, tort or  otherwise) arising in any Contract Year is limited to the greater of:

  (a) [ * ] Euros ([ * ] Euros); and

  (b) [ * ]% of the total payment due to the Distributor in the relevant Contract Year pursuant to Clause 4 (Payment Terms).

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   By Distributor.

   User claim arising out of or resulting from such End Users use of any Distributor App(s), including any actions or claims in product  liability, tort, contract or equity.     *Confidential treatment requested  Google Confidential



10. INDEMNIFICATION BY GOOGLE.

10.1 Google [ * ] and will indemnify Distributor against all liabilities, costs, damages and expenses (including settlement costs approved in  writing by Google and reasonable legal fees [ * ]) suffered or incurred by Distributor arising from any claim from a third party that any  Products or any Google Trademark infringe(s) any copyright, trade secret or trademark of such third party (an IP Claim), provided that  Distributor:

  (a) promptly notifies Google;

  (b) provides Google with reasonable information, assistance and cooperation in responding to and, where applicable, defending  such IP Claim; and

  (c) gives Google full control and sole authority over the defence and settlement of such IP Claim. Distributor may appoint its own  supervising counsel of its choice at its own expense.

10.2 Google will not have any obligations or liability under this Clause 10 in relation to any IP Claim arising from:

  (a) use of the Products or Google Trademarks in a modified form or in combination with materials not furnished by Google;

  (b) use of the Products or Google Trademarks other than in accordance with this Agreement; or

  (c) any content, information or data provided to Google by Distributor, End Users or any other third parties;

10.3 Google may (at its sole discretion) suspend Distributors distribution or use of the Products or the Google Trademarks which are alleged,  or believed by Google, to infringe any third party's Intellectual Property Rights, or modify such items to make them non-infringing. if any  suspension under this Clause continues for more than 30 days, Distributor may, at any time until use of the distribution or use of the  Products or the Google Trademarks is reinstated, terminate this Agreement immediately upon written notice. [ * ] will use reasonable  endeavours to [ * ] with [ * ] (to the extent it is practicable to do so) of the [ * ] or [ * ].

10.4 Distributor [ * ] and will indemnify Google against all liabilities, costs, damages and expenses (including settlement costs approved in  writing by Distributor and reasonable legal fees [ * ]) suffered or incurred by Google or any Google Group Company arising from: (a)  Distributor's improper (ie not in accordance with the requirements of this Agreement including the Exhibits) or unauthorised, replication,  packaging, marketing, distribution, or installation of the Products, including any breach of Clause 8.5 and any claims based on  representations, warranties, or misrepresentations made by Distributor, (b) any claim from a third party that the Distributor App(s)  infringe any third party copyright, trademark, or trade secret, or (c) any End

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   *Confidential treatment requested  Google Confidential



10.5 The indemnification obligations set out in Clause 10.4(b) shall exist only if Google: (a) promptly notifies Distributor of such claim, (b)  provides Distributor with reasonable information, assistance and cooperation in responding to and, where applicable, defending the  lawsuit or proceeding, and (c) gives Distributor full control and sole authority over the defense and settlement of such claim. Google may  join in defense with counsel of its choice at its own expense.

10.6 The foregoing Clauses 10.1 to 10.5 states the parties' entire liability and exclusive remedy with respect to infringement of a third party's  Intellectual Property Rights.

11. GENERAL

11.1 Publicity. Subject to clause 6 (Confidential Information), neither party may make any public statement regarding the relationship  contemplated by this Agreement without the other's prior written approval.

11.2 Notices. All notices of termination or breach must be in English, in writing, addressed to the other party's Legal Department and sent to  Distributor's address set out at the head of this Agreement or to [ * ] (as applicable) or such other address as either party has notified the  other in accordance with this Clause. All notices shall be deemed to have been given on receipt as verified by written or automated  receipt or electronic log (as applicable). All other notices must be in English, in writing, addressed to the other party's primary contact  and sent to their then current postal address or email address.

11.3 Assignment. [ * ] may [ * ]any of its rights or obligations under this Agreement without the prior written consent of [ * ]. For the  avoidance of doubt, a Change of Control shall be deemed an assignment hereunder unless [ * ] does not exercise its [ * ].

11.4 Force Majeure. Neither party shall be liable for failure to perform or delay in performing any obligation under this Agreement if the failure  or delay is caused by any circumstances beyond its reasonable control.

11.5 Compliance with Export Laws. Distributor shall comply with all applicable export and re-export control laws and regulations (Export  Laws), which the parties agree include: (a) the Export Administration Regulations maintained by the U.S. Department of Commerce, (b)  trade and economic sanctions maintained by the U.S. Treasury Department's Office of Foreign Assets Control, and (c) the International  Traffic in Arms Regulations maintained by the U.S. Department of State. Unless Distributor obtains prior authorisation required by  applicable Export Laws, Distributor shall not export any Product to Cuba, Iran, North Korea, Sudan or Syria.

11.6 No Waiver. Failure or delay in exercising any right or remedy under this Agreement shall not constitute a waiver of such (or any other)  right or remedy.

11.7 Severability. The invalidity, illegality or unenforceability of any term (or part of a term) of this Agreement shall not affect the continuation  in force of the remainder of the term (if any) and this Agreement.

11.8 No Agency. Except as expressly stated otherwise, nothing in this Agreement shall create an agency, partnership or joint venture of any  kind between the parties.

11.9 No Third-Party Beneficiaries. Except as expressly stated otherwise, nothing in this Agreement shall create or confer any rights or other  benefits in favour of any person other than the parties to this Agreement.

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   Signed by the parties on the dates shown below.

   *Confidential treatment requested  Google Confidential



11.10 Governing Law. This Agreement is governed by English law and the parties submit to the exclusive jurisdiction of the English courts in  relation to any dispute (contractual or non-contractual) concerning this Agreement save that either party may apply to any court for an  injunction or other relief to protect its Intellectual Property Rights. If this Agreement is translated into any other language, if there is  conflict the English text will take precedence.

11.11 Counterparts. The parties may execute this agreement in counterparts, which taken together will constitute one instrument.

11.12 Entire Agreement. Subject to Clause 9.1, this Agreement sets out all terms agreed between the parties in relation to its subject matter and  supersedes all previous agreements between the parties relating to the same. In entering into this Agreement neither party has relied on  any statement, representation or warranty not expressly set out in this Agreement.

DISTRIBUTOR   GOOGLE INC        /[ * ]   /s/ [ * ]  By   By        [ * ]   [ * ]  Name   Name        [ * ]   [ * ]  Title   Title        [ * ]   [ * ]  Date   Date

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  EXHIBIT A     Payments

   *[ * ]     ** [ * ].     *Confidential treatment requested  Google Confidential



[ * ]     [ * ]       [ * ]   [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]**     [ * ]*     $ [ * ]

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  EXHIBIT B     Process Flow





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  Form of Offering     1 - WhiteSmoke Welcome Screen





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  2-Toolbar offer     lf [ * ] Criteria Checker has returned True

     *Confidential treatment requested



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  3-Chrome offer     If [ * ] Criteria Checker has not returned 'True AND [ * ] Criteria Checker has returned True

     *Confidential treatment requested



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  4 - Installation Progress

     Google Confidential



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  5 - Chrome First Launch     If Chrome has been installed

     Criteria Checker     During the Term, for each End User who installs the Distributor App, Distributor shall use the [ * ] Criteria Checker to determine if [ * ] can be  offered to such End User. If the [ * ] Criteria Checker returns True, Distributor shall offer the End User the opportunity to install the [ * ] in  conjunction with the Distributor App. If the [ * ] Criteria Checker returns False Distributor shall: a) not offer the End User the opportunity to install  the [ * ] and b) use the [ * ] Criteria Checker to determine whether the [ * ] can be offered to such End User. If the [ * ] Criteria Checker returns  True, Distributor shall offer the End User the opportunity to install the [ * ] in conjunction with the Distributor App. If the [ * ] Criteria Checker  returns False, Distributor shall not offer such End User the opportunity to install the [ * ]. Prior to Launch, Distributor shall obtain Google's  approval of the parameters Distributor uses to call the [ * ] Criteria Checker and [ * ] Criteria Checker     Chrome Browser Auto Launch.     Distributor shall ensure that the first launch of the Chrome Browser following installation of the Chrome Browser complies with each of the  following requirements (the Chrome Launch Requirements):     (a) The Chrome Browser shall auto-launch immediately prior to the launch of the Distributor App, no earlier and no later.     *Confidential treatment requested



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   (b) No advertisements, offers, or other communications shall appear between launch of a Distributor App and launch of the Chrome  Browser.     (c) Upon launch of the Chrome Browser, the Chrome Browser shall immediately appear on the End User's computer desktop exactly as  shown in this Exhibit B. Without limiting the preceding sentence, each of the following shall appear on the End User's desktop exactly as shown in  this Exhibit B: (i) the location and size of the Chrome Browser window and the Distributor App window, (ii) the z-order of the Distributor App and  the Chrome Browser, and (iii) the number and content of the tabs in the Chrome Browser (i.e., the Chrome Browser shall contain exactly two (2)  tabs, with the first tab set to google.com, and the second tab set to http://tools.google.com/chrome/intlfen-US/welcome.html (or such other url as  Google may specify). In no event shall the Chrome Browser window be minimized. Notwithstanding the foregoing, Distributor may modify the  content and design of the Distributor App window provided that Distributor complies with the other restrictions in this Agreement and obtains  Google's prior consent.     (d) The tabs in the Chrome Browser and the Omnibox shall be clearly visible to the End User as shown in this Exhibit B, regardless of the  resolution of the End User's monitor. In no event shall the tabs in the Chrome Browser or the Omnibox be hidden behind a Distributor App.     (e) Distributor shall implement (or, if implemented by Google, Distributor shall not modify) the six-month flag (i.e., the functionality that  prevents an End User from receiving more than one (1) offer for the Chrome Browser within any six (6)-month period) unless Google has provided  written confirmation (including by email) that the 6-months flag can be turned off. Note that this authorisation may be revoked at any time and  Distributor shall then include the 6 months flag again in future builds.



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  EXHIBIT C     Guidelines for Applications Bundled with Google Applications     Google has observed a significant increase in the number of reports of software that is engaging in deceptive, malicious and other annoying  practices that significantly diminish user perception and enjoyment of the internet. These practices include but are not limited to installing  software on computers without obtaining informed end user consent (the so-called drive-by download), inundating end users with  advertisements without adequate attribution or labeling, exposing users to pornographic material without obtaining informed end user consent,  obtaining or transmitting personal information about an end user without obtaining informed end user consent, and interfering with an end user's  ability to easily uninstall applications the end user does not wish to be on his or her computer.     Google does not wish to be associated with these types of practices. Accordingly, Google has developed the Guidelines set forth below to prevent  its trademark, other intellectual property, and services from being used in connection with these practices. Google believes that these Guidelines  are necessary to protect Google from any allegation that it has contributed to practices that might be viewed as unlawful or actionable; to preserve  the reputation of Google as a provider of trusted software and services in a manner that is beneficial and fair to users and other constituents; and  to stem the rising incidence of practices that harm users and diminish the perceived value and reliability of the internet, which are essential to  Google's business.     With this objective in mind, Google has established the following Guidelines to apply to customer Applications that are bundled with any Google  Application. Except to the extent Google has otherwise specifically agreed in writing, Google does not grant permission to, and you will not,  bundle any Application with a Google Application unless you ensure that any such Application specified in the agreement between you and  Google that incorporated these Guidelines complies with these Guidelines.     For the avoidance of doubt, by these Guidelines Google does not intend to, and does not, impose any restrictions on what you may do with any  Application that is not bundled with a Google Application, bundled with an Application that accesses Google services, or used to access Google  services; you remain free to sell any Application you wish (whether or not it complies with these Guidelines) so long as it is not bundled with a  Google Application, bundled with an Application that accesses Google services, or used to access Google services.     In these Guidelines: (a) you and your refer to the legal entity(ies) that has entered into the contract with Google into which these Guidelines  are incorporated, as well as any person or entity acting on your behalf; and (b) Application means any application, plug-in, helper, component or  other executable code that runs on a user's computer, examples of which include those that provide browser helper objects, instant messaging,  chat, email, data, file viewing, media playing, file sharing, games, internet navigation, search and other services.    Google Confidential



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   Google welcomes input about these Guidelines from you and from other interested parties, and is always willing to consider revisions as  appropriate to encourage innovation while protecting against deceptive, unfair and harmful practices. Accordingly, Google may update these  Guidelines, including the Attachments, from time to time as provided in Section 10 below.     If you have any questions about these Guidelines, please do not hesitate to discuss them with your Google account manager.     Google Confidential



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   1. General.     1.1 Approval and Ongoing Compliance. You may bundle Google Applications with Applications only to the extent permitted in the  signed written agreement into which these Guidelines have been incorporated. In such instance, you must ensure that your Application both (1)  has been approved by Google for the purpose of being bundled with Google Applications in writing in advance, and (2) complies at all times with  the requirements outlined herein. To obtain Google's approval for any Applications not expressly approved in your agreement, you must submit a  written request.     1.2 No Google Branding or Attribution. Your Application, and any related collateral material (including any Web pages promoting your  Application or from which your Application is made available), must not contain any Google branding, trademarks or attribution unless (and then  only to the extent) Google expressly consents otherwise in writing. In addition, queries entered into Applications may not resolve to a results page  that contains any Google branding, trademarks or attribution unless (and then only to the extent) Google expressly consents otherwise in writing.     2. Prohibited Content. You may not bundle any Google Application with an Application that: (a) contains any viruses, worms, trojan horses, or the  like; and (b) is distributed primarily for the purpose of (i) distributing pornographic, obscene, excessively profane, gambling-related, deceptive,  fraudulent or illegal content, or (ii) distributing content related to hacking or cracking.     3. Prohibited Behavior. You may not bundle any Google Application with an Application that engages in deceptive, unfair, harassing or otherwise  annoying practices. For example, the Application may not:







   Google Confidential



  (a) use, or permit an unaffiliated person to use, an end user's computer system for any purpose not understood and  affirmatively consented to by the end user (including, without limitation, for purposes of consuming bandwidth or  computer resources, sending email messages, launching denial of service attacks, accruing toll charges through a dialer  or obtaining personal information from an end user's computer such as login, password, account or other information  personal to the end user);

  (b) intentionally create or exploit any security vulnerabilities in end user computers;

  (c) trigger pop-ups, pop-unders, exit windows, or similar obstructive or intrusive functionality, that materially interfere with  an end user's Web navigation or browsing or the use of his or her computer;

  (d) repeatedly ask an end user to take, or try to deceive an end user into taking, an action that the end user has previously  declined to take (such as repeatedly asking an end user to change his or her home page or some other setting or  configuration);

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   4. Disclosure and Consent.     4.1 Disclosure and Consent before Installation. You may not bundle any Google Application with any Application unless you (and your  distribution and bundling partners, if applicable under the terms of the agreement between you and Google that incorporates these Guidelines)  design the installation of any such Application in a manner that ensures that it is installed by end users in a knowing and willful manner - e.g., no  drive-by' downloads or installs. By distribution partner we mean any third party who distributes your Application and by bundling partner  we mean any third party who installs your Application in combination with or alongside one or more other Applications. At a minimum, compliance  with this provision requires that, prior to installing your Application, you and any third party distributing or bundling your Application:









   4.2 Disclosure and Consent for Collection and Transmission of Personally Identifiable information. You may not bundle any Google  Application with any Application that (1) collects or transmits to any entity other than the end user personally identifiable information, or (2)  collects or transmits information related to a user's computer or Internet usage or activity in a manner that could collect or transmit such user's  personally identifiable information (such as through keystroke logging), unless prior to the first occurrence of any such collection or transmission  you:

   Google Confidential



  (e) redirect browser traffic away from valid DNS entries (except that your Application may direct unresolved URLs to an  alternative URL designated by you, provided that the page to which the end user resolves adequately informs the end  user that you and your Application are the source of that page);

  (f) interfere with the browser default search functionality (except that your Application may permit an end user to change  his or her default search engine with proper disclosure, consent and attribution as provided below); or

  (g) engage in activity that violates any applicable Jaw or regulation.

  (a) first, fully, accurately, clearly and conspicuously disclose to end users:

  (i) that they are installing an application,

  (ii) the name of the Application, identifying you as the entity responsible for it, and

  (iii) the principal and significant features and functionality of the Application; and

  (b) then, obtain the end user's affirmative consent to install the Application.

  (a) first, fully, accurately, clearly and conspicuously disclose:

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   4.3 Disclosure and Consent for Setting Changes. You may not bundle any Google Application with any Application that makes a  change to any operating system or Application data setting which will impact the user experience of other Applications (e.g., changing the  browser default home page or changing the default application for a file type, such as the default email, browser or media player application),  unless prior to making such change you:



   Notwithstanding the foregoing, (i) no disclosure and consent need be made for changes to operating system or Application data settings that  have only a minor impact on user experience, such as adding a small number of bookmarks to the browser menu or adding an item to a start menu,  and (ii) the disclosure and consent requirements of this Section 4.3 will not apply to those setting changes that may be made prior to sale to the  end user.     4.4 Method of Disclosure and Consent. In order to satisfy the requirements above, the disclosure of the items specified above (a) must be  provided in both (1) the End User License Agreement (EULA) or privacy policy (to the extent required by law or otherwise by industry custom)  and (2) separately from the EULA and/or privacy policy (e.g. in installation screens or message boxes, as the case may be), and (b) must be  designed so that it will be read by, adequately inform and evidence the consent of a typical Internet user. See Attachment 1 for sample disclosure  and consent implementations that would satisfy certain of the requirements above.     4.5 EULA and Privacy Policy. You may not bundle any Google Application with any Application unless it conforms, and is distributed  pursuant to a EULA that conforms, with all applicable laws and regulations. In addition, you and your Application must comply with the  agreements and representations you make with your end users in your EULA and privacy policy. Your privacy policy must be accessible from  your Application in an easily found location. If your Application collects or transmits any other information related to the user's use of his or her  computer, but not required to be disclosed and consented to pursuant to Section 4.2, then the collection and use of such other information must  be disclosed in your privacy policy.     Google Confidential



  (i) the type of information collected (described with specificity in the case of personally identifiable information),

  (ii) the method of collection (e.g. by registration, etc.), and

  (iii) the location of (i.e., a link to) the privacy policy that governs the collection, use and disclosure of the  information; and

  (b) then, obtain the end user's affirmative consent to such collection and/or transmission.

  (a) first, fully, accurately, clearly and conspicuously disclose the change in a manner that will explain the practical effect of  such change; and

  (b) then, obtain the end user's affirmative consent to make such change.

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   5. Transparency. Neither you nor any of your third party distribution or bundling partners may mislead end users or create end user confusion  with regard to the source or owner of an Application or any portion of its purpose, functionality or features. For example, all elements of your  Application that are visible to the end user must clearly identify their source through its branding and attribution, and that identification, whatever  form it takes, must correspond to the identification of your application in the menu that permits end users to remove programs. You must clearly  label advertisements provided by your Application (if any) as such and clearly identify your Application as the source of those advertisements. In  addition, if your Application modifies the operation or display of other applications or Web sites (other than Web sites that you own), then in  each instance you must clearly and conspicuously attribute the source of that modification to your Application (as distinct from the application or  Web site modified) in a manner that will inform a typical Internet user; provided that this requirement will not apply to modifications for which you  obtain disclosure and consent pursuant to Section 4.3. See Attachment 1 for examples of modifications that are clearly and conspicuously  disclosed to end users.     6. Deactivation. You may not bundle any Google Application with any Application that impairs an end user's ability to change any preferences or  settings set by the Application in accordance with the way that such preferences or settings ordinarily may be changed by the applicable  Application. Once disabled by an end user, your Application may not be re-enabled without an affirmative action by the end user to explicitly re- enable your application. Accordingly, no use, update, installation or re-enablement of a separate Application, and no code downloaded as a result  of browsing a Web site, may operate to re-enable your Application. Your Application must permit end users to uninstall it (in the customary place  the applicable operating system has designated for adding or removing programs, e.g., Add/Remove Programs control panel in Windows) in a  straightforward manner, without undue effort or skill. In addition, your Application, when running, must provide (in an easily found location) clear  and concise instructions on how it may be uninstalled. Once uninstalled, your Application must not leave behind any functionality or design  elements, and all setting changes made by the application, but not explicitly agreed to by the end user, should be reversed to the extent  practicable.     7. Bundling of Applications. In addition to the requirements set forth in the agreement between you and Google that incorporates these  Guidelines, in order for you to bundle any Application with a Google Application must satisfy each of the following requirements:





   Google Confidential



  (a) the end user is made aware of all of the Applications included in the bundle prior to any installation;

  (b) all such Applications included in the bundle or download comply with the provisions of Section 2 through 6 of these  Guidelines;

  (c) if Applications in a bundle in which you are participating are supported in part by revenue generated by advertising  displayed in another independent Application included in that bundle and the continued use of the Application is  conditioned on such other independent Application remaining installed and active on the end user's computer, the end  user must be made aware of that relationship; and

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   8. Information and Assistance. Subject to any confidentiality obligations owed to third parties, you must provide Google with such information as  Google may reasonably request about the distribution of those of your Applications that are bundled with any Google Application. For example,  we may ask you to share with us: (a) the means by and/or the locations from which your Applications are distributed; or (b) the identity of any  applications included in any of your bundling relationships (and the entities responsible for such applications). In addition, you must provide  such assistance as Google may reasonably request to investigate and stop potential violations of these Guidelines that may be connected to your  Application, including by way of using such number of identifiers and other tracking parameters as Google may reasonably request. This would  include providing Google with golden masters of any bundle or other distribution that includes your Application, or working with Google to  stop any entities that may be financially benefiting from your Application from engaging in any of these proscribed practices. You understand,  however, that Google has no obligation to provide support to end users of your Application. For the avoidance of doubt, these information and  assistance rights do not extend to any of your Applications that are not used to access Google services, bundled with a Google Application, or  bundled with an Application that accesses Google services.     9. Legal. You must maintain ownership and control of your Application at all times to the extent required to practically and legally enforce the  requirements of these guidelines. If you are seeking to permit a third party Application to be bundled with a Google Application, then you must  also obtain Google's written approval of that third party Application (in addition to the approval required for your Application). If Google  approves the third party Application, you are responsible for ensuring that such third party Application also complies with these Guidelines.  Special indemnity and other suspension and/or termination provisions may apply. These are addressed in your agreement with Google.     10. Updates.     10.1 General. As mentioned above, Google may update these Guidelines, including the Attachments, from time to time; provided,  however, that no updates will be effective until Google provides you with thirty (30) days' written notice thereof. Once you receive that notice (the  date on which you receive such notice, the Update Notice Date), you will be required to bring your Application into compliance within thirty (30)  days     Google Confidential



  (d) either (1) the bundle must provide for a master uninstaller that will enable the end user to uninstall every Application in  the bundle without undue effort or skill, or (2) if no master uninstaller is provided, the de-installation of any Application  may not be dependent or conditioned upon the de-installation of any other Application included in the bundle.

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  10.2 Extended Compliance Period. If, solely as a result of an updated requirement, one or more of your Applications no longer complies  with these Guidelines, as updated, and you are incapable of bringing such Application into compliance prior to the scheduled effective date of  such update (the Update Effective Date), you agree to provide Google with written notice thereof as soon as reasonably practicable, but in any  event no later than the Update Effective Date, identifying the Application and the reasons why it may not be brought into compliance prior to the  Update Effective Date, and providing such other detail as Google may reasonably request with respect thereto (consistent in any event with your  confidentiality obligations). Thereafter, the parties will consult, and you agree to will work, diligently and in good faith to develop and execute a  plan to bring such Application into compliance with these Guidelines, as updated, as soon as reasonably practicable, but in any event within  ninety (90) days of the Update Notice Date (the Maximum Compliance Period). You agree that you will provide Google with such information as  Google reasonably requests during this period to keep Google apprised of your progress in bringing your Application into compliance.  Notwithstanding the foregoing (but subject to the next sentence), in no event may a new requirement provided for in any update to these  Guidelines require you to take any action which would violate the terms of any agreement between you and any unaffiliated third party that is in  effect on the date that Google delivers notice of the proposed update. In any event, if you are unable to bring any Application into compliance  during the Maximum Compliance Period, Google may elect, by providing at least thirty (30) days prior written notice, to require you to cease  bundling either the specific non-conforming Application or those versions of the Application which are, or are distributed, in violation of the  Guidelines, as updated; it being understood that, at such time, you will be entitled to procure services from an alternative source for those  Applications (or versions thereof) with respect to which Google has exercised such election.     Google Confidential



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  Attachment 1     Prohibited Behavior and Content     The application may not impact the display of other applications unless you provide clear disclosure in each instance

    Google Confidential



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    Google Confidential



  - 32 -





  Disclosure and Consent     Clear and conspicuous disclosure is required prior to download or install: what it is, what it does, and how it will be displayed to the end user

     Disclosure and Consent     Describe type, method, and use of personal information, if applicable. Point user to privacy policy

    Google Confidential



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    Google Confidential



  - 34 -





  Branding & Attribution     The visible elements of the application should be easily identifiable to the end user

    Google Confidential



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  Implementation, Transparency and Deactivation     The Application must permit end users to uninstall it in the customary place the applicable operating system has designated for adding or  removing programs (e.g., Add/Remove Programs control panel in Windows) in a straightforward manner    Google Confidential



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    Google Confidential



  - 37 -





  Implementation, Transparency and Deactivation     The Application must contain (in an easily found location) clear and concise instructions on how it may be uninstalled

    Google Confidential



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  Bundling of Applications     When bundling, the end user must be made aware of all the applications included prior to installation.

    Google Confidential



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  Bundling of Applications     When bundling, the end user must be made aware of advertising revenue relationships to other applications, if the continued use of the primary  application is conditioned on the other applications being installed and active on the end user's computer

     Google Confidential



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[A]: Highlight the parts (if any) of this contract related to Warranty Duration that should be reviewed by a lawyer. Details: What is the duration of any  warranty against defects or errors in technology, products, or services  provided under the contract?


[Q]: Exhibit 10.31    PURSUANT TO 17 C.F.R. § 240.24B-2, CONFIDENTIAL INFORMATION (INDICATED BY {*****}) HAS BEEN OMITTED FROM THIS  DOCUMENT AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A  CONFIDENTIAL TREATMENT APPLICATION FILED WITH THE COMMISSION     ACCURAY INCORPORATED  MULTIPLE LINAC AND MULTI-MODALITY   DISTRIBUTOR AGREEMENT     This Multiple LINAC and Multi-Modality Distributor Agreement (Agreement) is entered into by and between ACCURAY  INCORPORATED, a Delaware corporation with its executive offices located at 1310 Chesapeake Terrace, Sunnyvale, California 94089, USA  (Accuray), and SIEMENS AKTIENGESELLSCHAFT, a corporation formed under the laws of the Federal Republic of Germany, with its registered  offices located at Berlin and Munich (Siemens), as of June 8, 2010 (Effective Date).     RECITALS     Accuray manufactures and sells full-body radiosurgery systems using image-guided robotics, including the CyberKnife® Robotic  Radiosurgery System, which is FDA cleared in the United States to provide treatment planning and image-guided stereotactic radiosurgery and  precision radiotherapy for lesions, tumors and conditions anywhere in the body where radiation treatment is indicated.     In order to achieve its business objectives, Accuray relies on qualified distributors to market and distribute its products and services.     Accuray and Siemens have entered into that certain Strategic Alliance Agreement, dated as of the date hereof (the Strategic Alliance  Agreement), and such agreement provides that Accuray and Siemens shall enter into a distribution agreement for Multiple LINAC and Multi- Modality Purchases (as defined below).     Accuray wishes to appoint Distributor (as defined below) as a non-exclusive, worldwide distributor for the Products and Services to  Customer in connection with Multiple LINAC or Multi-Modality Purchases (as defined below), subject to the terms and conditions of this  Agreement, and Distributor wishes to accept such appointment.     NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants set forth below, the parties hereto hereby  agree as follows:     1. DEFINITIONS. Capitalized terms used, but not defined herein, shall have the meaning provided in the Strategic Alliance Agreement. The  following terms, as used herein, have the following meaning:     1.1. Accuray Regions means Accuray's sales regions (as of the Effective Date) of the Americas (North America and South America),  APAC (Asia Pacific, including Australia and other than India and Japan), EIMEA (Europe, India, Middle East, and Africa), and  Japan.     1.2. Customer means any person or business entity with whom Distributor enters into an agreement for Products or Services in  connection with a Multiple LINAC or Multi-Modality Purchase pursuant to this Agreement.     1.3. Distributor means Siemens, its Affiliates, or any Third Party which has been granted distribution rights whose scope includes the  Products and/or Services by Siemens.     1.4. Multiple LINAC or Multi-Modality Purchase means a Multiple LINAC Purchase or a Multi-Modality Purchase.





     1.5. Multi-Modality Purchase means the purchase, on a single purchase order, of at least one Distributor imaging product (e.g., CT, MR,  PET-CT) and at least one System.     1.6. Multiple LINAC Purchase means the purchase, on a single purchase order, of at least one Distributor linear accelerator product and  at least one System.     1.7. Product(s) means the System and/or related products manufactured by or for Accuray for use in the radiosurgery market, which  have been approved for sale in the Customer's geographic region.     1.8. Quote means a quote provided by Accuray to Distributor pursuant to Section 2.3 that will serve as the basis for the Product  configuration, Services, pricing and delivery schedule offered to a Customer by Distributor.     1.9. Service(s) means the performance of radiosurgery-related service(s) by Accuray or its distributors, which may include technical  support, training or installation of Products as specified in the Quote.     1.10. Service Agreements means the Accuray CyberKnife Service Agreement or such other service programs and agreements as may be  released or modified by Accuray from time to time.     1.11. Spare Parts means replacement or additional parts or Products used in connection with the System.     1.12. Specification(s) means the current written description of a Product or Service prepared by Accuray and provided to Distributor.     1.13. System(s) means the Accuray CyberKnife® Robotic Radiosurgery System or CyberKnife® VSI™ System, as applicable.     2. DISTRIBUTORSHIP     2.1. Appointment. Accuray hereby appoints Distributor as a non-exclusive, worldwide distributor of Products and Services to Customers  solely in connection with Multiple LINAC or Multi-Modality Purchases, not to the exclusion of Accuray itself or any of its other  current or future distributors and subject to the terms and conditions of this Agreement. By way of clarification, this Agreement  does not relate to any Cayman Product, including, without limitation, the distribution or sale thereof or any services related thereto.     2.2. Pricing.     2.2.1. Pricing of Products and Services shall be based upon Accuray's then current price lists for such Products and Services. The  current price list for Products and Services effective as of the Effective Date will be provided to Distributor  contemporaneously with the delivery of this fully executed Agreement to Distributor. Such price lists will be subject to  change from time to time in Accuray's sole discretion, and Accuray shall use commercially reasonable efforts to provide  Distributor with updated pricing on a regular basis, provided that pricing included in a Quote delivered by Accuray to  Distributor shall reflect Accuray's current up-to-date pricing unless otherwise agreed. Updated price lists shall not apply to  valid Quotes      2





     issued by Accuray and subject to acceptance by Distributor prior to the effective date of such updated price lists.     2.2.2. Notwithstanding the foregoing or anything to the contrary contained in this Agreement, Distributor may present for approval  to Accuray opportunities for sales of Products and Services at prices that differ from the prices set forth in the then current  price list. Accuray may, in its sole and absolute discretion, approve any such opportunity, and if approved in writing by  Accuray, Distributor shall otherwise be permitted to pursue such opportunity at such prices, which opportunity shall  otherwise be governed by and pursued pursuant to the terms of this Agreement.     2.3. Quote and Purchase Process. Distributor acknowledges and agrees that Accuray will determine the appropriate quote process to be  observed by the parties under this Agreement and may amend this process (other than the approval rights set forth in Section 2.3.2)  as notified to the Distributor reasonably in advance. In addition, Distributor acknowledges that each proposed sale of a Product or  Service under this Agreement is subject to the approval rights of Accuray set forth in Section 2.3.2. Accuray and Distributor will  comply with the following process for making sales of Products and Services in connection with Multiple LINAC or Multi-Modality  Purchases:     2.3.1. Opportunity. Once Distributor has identified a Customer opportunity in connection with a Multiple LINAC or Multi-Modality  Purchase, it shall request a Quote from Accuray based on the Product configuration and Services requested by the  Customer and the Accuray Region in which the Customer is located, and shall include such other information regarding the  Customer and the proposed opportunity as Accuray may reasonably request.     2.3.2. Quote. Following receipt of Distributor's Quote request, Accuray will determine whether to approve the issuance of a Quote  related to such request. Such determination shall be made in accordance with and subject to the conditions set forth in  Schedule 2.3.2 attached hereto. If Accuray approves the issuance of a Quote, Accuray shall issue a Quote to Distributor  based on the Product configuration and Services requested by the Customer, including pricing for such Products and  Services as provided in Section 2.2 above. The Quote issued by Accuray in relation to a Customer opportunity shall serve  as the basis of any offer made by Distributor to that Customer and shall remain valid for at least six months (unless earlier  declined by Distributor), and Distributor shall submit an amended Quote request to Accuray in the event adjustments to a  Quote are requested by the Customer. Any such amended Quote request from Distributor shall again be subject to the  Accuray approval process set forth in this Section 2.3.2.     3





     2.3.3. Purchase. To purchase Products or Services based on a Quote provided by Accuray, Distributor will issue a purchase order,  which shall include specific references to the quote number of such Quote (the Purchase Order). Accuray shall either  accept or reject such Purchase Order within two weeks after receipt thereof, with any failure to approve or disapprove of  such Purchase Order in such period constituting disapproval. Each purchase of Accuray Components and Interfaces shall  be accomplished and a Purchase Order may be accepted by the execution of the Purchase Order by an authorized  representative of Accuray. To the extent of any inconsistency between the Quote and the related Purchase Order, the  terms and conditions of such Quote shall govern and Distributor acknowledges and agrees that Accuray shall not be  bound by any terms, conditions or boilerplate language included in a Distributor purchase order submitted to Accuray.  The Purchase Order shall be delivered to Accuray via fax, electronic mail, or mail at the following address:     Accuray Incorporated  ATTN: Contracts Administration  1310 Chesapeake Terrace  Sunnyvale, CA 94089  Main: (408) 716-4600  Fax: (408) 789-4205  Email: Orders@accuray.com     2.3.4. Cancellation; Amendment; Conflict. Distributor may cancel the Purchase Order if Accuray has not executed such Purchase  Order within two weeks of receipt. Any amendment or addition to the Purchase Order shall only be effective if Distributor  and Accuray confirm such amendment or addition in writing. To the extent of any inconsistency between a Quote or a  Purchase Order and this Agreement, this Agreement shall prevail, unless such Quote or Purchase Order is signed by both  the CFO or General Counsel of Accuray and the CFO of Distributor, expressly refers to this Section 2.3.4, and states that  the Quote or Purchase Order is intended to supersede this Agreement.     2.4. Standard Lead Time. As of the Effective Time and to the best of Accuray's knowledge, Accuray's standard lead time for delivery of  Products is six months.     3. DUTIES OF DISTRIBUTOR     3.1. Independent Distributor. Distributor shall be and must at all times make it clear that it is an independent entity contracting with  Accuray, and is not the employee, representative or agent of Accuray. Distributor does not have the ability or authority to enter  into any legal agreements or obligations that would bind Accuray in any manner.     3.2. Market Knowledge, Promotion and Sales. Distributor will develop a thorough and complete understanding of the Products and  Services. Distributor will use its knowledge and understanding to identify and cultivate potential Customers. Distributor agrees to  use commercially reasonable efforts to introduce, promote the sale of, and obtain orders for the Products and Services in connection  with Multiple LINAC or Multi-Modality Purchases, including, without limitation, including the Products and Services in each of  Distributor's      4





     Oncology Care Systems price book and sales operation system, such that all of Distributor's sales representatives can access  quotations for Products and Services at least as easily as all other systems then available for purchase from Distributor. Moreover,  Distributor represents and warrants that, on the date hereof and during the Term of this Agreement and any extension thereof, it (i)  possesses the knowledge, experience, skills, and ability required to properly fulfill its obligations under this Agreement; and (ii) has  the required facilities, manpower, capacity, financial strength, and knowledge to market and distribute Accuray's Products and  Services in connection with Multiple LINAC or Multi-Modality Purchases.     3.3. Distributor Personnel. During the Term of this Agreement and any extension thereof, Distributor agrees to use commercially reasonable  efforts to employ qualified sales and technical personnel familiar with the Products and Services, including, without limitation, at  least one person in Distributor's Oncology Care Systems sales group with a primary responsibility for sales of Products, to perform  the marketing and sales requirements as set forth herein.     3.4. Distributor Personnel Sales Training. Distributor shall use commercially reasonable efforts to cause each of its Oncology Care Systems  sales personnel with any sales duties related to the Systems to attend any training provided by Accuray in such personnel's  Accuray Region pursuant to Section 4.12.     3.5. Offers. Distributor shall inform Accuray of all potential Customers for Multiple LINAC or Multi-Modality Purchases during the Term of  this Agreement or any extension thereof. Distributor shall offer such potential Customers only those Products or Services described  in then current price lists, and only in accordance with the applicable Customer Quote and this Agreement.     3.6. Purchase Schedule. For each sale completed by Distributor, the resulting contract for the sale of Products shall be between Distributor  and the Customer and the Service Agreement, if any, shall be between Accuray and the Customer or Accuray and the Distributor, as  determined pursuant to Section 4.8. For each such sale, Distributor must send a Purchase Order to Accuray at least six (6) months  prior to the expected shipment date.     3.7. Customer Complaints. Distributor shall report promptly and in writing to Accuray any complaints or expressions of dissatisfaction by  the Customers to Distributor relating to the Products or Services. Any such reports shall be provided to Accuray via electronic mail  to the following address: complaints@accuray.com.     3.8. Warranty. Distributor will not make any warranties or representations in Accuray's name or on Accuray's behalf other than the  warranty provided by Accuray pursuant to Section 4.6 unless approved in advance in writing by Accuray.     3.9. Service Agreements. Distributor will make commercially reasonable efforts to sell a Service Agreement to each Customer. For the  avoidance of doubt, (i) the obligations of the parties with respect to the Service Agreement are as set forth in Sections 3.6 and 4.8  and (ii) the failure of Distributor to sell a Service Agreement to any Customer shall not be deemed to be a breach of this Agreement.     3.10. Upgrades. Any Product upgrades released by Accuray (other than Bug Fixes and Safety Updates, which are addressed in Section  4.6.3 and 4.6.4 respectively) can be purchased at the discretion of the Distributor pursuant to the procedures set forth in Section 2.3.  Such      5





     upgrades will be available at the prices listed in the then current price list as of the date of the Quote (unless prior written approval  by Accuray for application of an earlier price list is obtained) for the upgrade, less any applicable discounts as specified in Exhibit A  hereto.     3.11. Compliance with Laws.     3.11.1. Compliance Generally. Distributor has and will have during the Term of this Agreement and any extension thereof the ability  to distribute, market and sell the Products and Services in accordance with the terms of this Agreement, in full compliance  with all governmental, regulatory and other requirements under any applicable law. Furthermore, Distributor agrees to  comply with all applicable international, national, regional and local laws applicable to the performance of its duties  hereunder or to any transactions involving the Products or Services contemplated hereunder.     3.11.2. United States Laws. Distributor understands that, because it is distributing the Products and Services of Accuray, a  corporation subject to the laws of the United States of America, Distributor must, when carrying out its duties pursuant to  this Agreement, avoid violations of certain of such laws. These include, but are not necessarily limited to, the following:     3.11.2.1. Restrictive Trade Practices or Boycotts, U.S. Code of Federal Regulations Title 15, Chapter VII, Part 760.     3.11.2.2. Foreign Corrupt Practices Act, U.S. Code Title 15, § 78.     3.11.2.3. Export Controls, imposed by U.S. Executive Order or implementing regulations of the U.S. Departments of  Commerce, Defense or Treasury.     3.11.3. No Illegal Activity. Neither party (nor their sub-distributors, if any (Sub-Distributors)) shall engage in any illegal activities.  A party will not be held responsible for any activities of the other party or the other party's Sub-Distributors that may be  considered to be illegal. For example, neither party supports the practice of bribes or under-the-table payments. Each party  will ensure a like clause is included in each agreement it has with its Sub-Distributors, and monitor activities of its Sub- Distributors closely. In the event a party deems that its good-will has been or may potentially be affected by any such  illegal activity of the other party or the other party's Sub-Distributors, then such party reserves the right to terminate this  Agreement or any portion thereof that relates to or is materially affected by such illegal activity with no further liability to  the other party or the other party's Sub-Distributors. Such party assumes no liability for such illegal activity and the other  party hereby indemnifies and holds such party, its officers and assigns, harmless from any loss, damage and liability  arising from or in connection with such illegal activity.     3.12. Sales Targets. Distributor shall not be subject to any minimum purchase requirements, but shall agree to the annual sales targets set  forth in Schedule 2.5(d)(i)(2) of the Strategic Alliance Agreement and to using its customary standard sales processes, including,  without limitation, the MTA process, with respect to sales of Systems.     6





     3.13. Affiliates; Distributors. Siemens shall cause any of its Affiliates or distributors purchasing Systems or Services pursuant to the terms  of this Agreement to agree to be bound by and comply with the terms and conditions of this Agreement and the provisions of the  Strategic Alliance Agreement related to or applicable to such purchase, unless such Affiliate or distributor is already party to a  distribution agreement for Products with Accuray.     4. DUTIES OF ACCURAY     4.1. Fulfillment and Shipment.     4.1.1. Fulfillment of Executed Purchase Orders. Accuray is responsible for ensuring that the Products supplied are of good quality as  further described below. Accuray will use commercially reasonable efforts to provide to Distributor or Customer, as  applicable, in a timely manner those Products and Services required to fill confirmed Purchase Orders received from  Distributor in accordance with the terms of this Agreement.     4.1.2. Shipment. All shipments shall be made F.C.A. Port of Oakland, California, USA. Transfer of risk from Accuray to Distributor  shall occur at such F.C.A. location as provided in F.C.A. terms and transfer of title shall occur at the same time. Distributor  may request Accuray to use a particular freight carrier, and Accuray agrees to do so, if feasible. If not feasible in Accuray's  reasonable judgment, then Accuray shall promptly advise Distributor of the reasons. If no such request is made, Accuray  shall ship in accordance with any instructions contained in the Purchase Order or via FedEx ground, with no extra  insurance. Accuray shall bill any actual freight costs to Distributor. Any supplementary shipping costs arising from the  need to meet the delivery deadline set forth in the Purchase Order by way of expedited delivery shall be borne by Accuray,  if such delivery deadline was at least six months after the submission of such Purchase Order by Distributor. For example, if  a Purchase Order was submitted on June 1, with a requested delivery date of December 1, any expedited delivery expenses  required in order to ensure delivery by December 1 shall be borne by Accuray, while if the requested delivery date was  October 1, any expedited delivery expenses required in order to ensure delivery by October 1 shall be borne by Distributor.     4.2. Product and Service Pricing. Accuray will provide its then current U.S. list pricing for its Products and Services to Siemens once per  year during the Term of this Agreement and any extension thereof, or upon request from Siemens. All prices will be stated in US  Dollars, unless another currency is agreed upon in writing by Accuray.     4.3. Product Specifications and Promotional Literature. Accuray will provide product specifications and promotional literature to Distributor  from time to time during the Term of this Agreement and any extension thereof. Distributor may use product specifications and  promotional literature in Distributor's dealings with Customers. Accuray may introduce changes and upgrades to the Products.  Accuray will use commercially reasonable efforts to give Distributor as much advance notice of upgrades as is feasible.     4.4. Regulatory Clearance. Accuray will be responsible for and will bear all expenses related to obtaining and maintaining any approvals,  permits and licenses required under any applicable law in order to sell, market and distribute the Products and Services to a  Customer in      7





     connection with Multiple LINAC or Multi-Modality Purchases, including any upgrades to or expanded usage of the Products;  provided, however, that if Accuray does not have a direct presence in or Accuray does not have a distributor for the sales of  Systems specifically for the country in which the Customer requests delivery, as a condition to any sale of Products or Services to  such Customer, Accuray may require Distributor (solely with the consent of Distributor) to enter into a distribution agreement with  Accuray pursuant to Section 3.2 of the Strategic Alliance Agreement providing, among other things, that Distributor will be  responsible for obtaining all such approvals, permits, and licenses for sales to such Customer. Distributor will provide any  assistance or documentation reasonably requested by Accuray and at Accuray's expenses to assist Accuray with its obligations  under this Section 4.4. Accuray will be registered as the sole owner of any rights, title and interest to any of the Products or Spare  Parts, as the case may be; provided, however, that should any applicable law or regulation require that Distributor alone be entitled  to such ownership rights, Distributor shall hold this approval as trustee for Accuray and hereby consents to transfer or sublicense  such approval to Accuray free of charge or to support Accuray in its efforts to re-obtain the approval for the benefit of Accuray or a  third party named by Accuray upon expiration or termination of this Agreement. Lists indicating, as of the Effective Date, (i) the  countries in which Accuray has obtained regulatory approvals for the Products and Services and (ii) the countries in which Accuray  has a direct presence or has a distributor for the sales of Systems specifically for such country are being delivered to Siemens  concurrently with the execution of this Agreement. Accuray shall provide to Siemens updates of such lists on a quarterly basis.     4.5. Import License. Accuray or its distributor will obtain and maintain all required import licenses, and shall serve as importer of record for  all Products and Services delivered in or into any country or region, other than the United States, pursuant to this Agreement;  provided, however, that if Accuray does not have a direct presence in or Accuray does not have a distributor specifically for the  sales of Systems in the country in which the Customer requests delivery, as a condition to any sale of Products or Services to such  Customer, Accuray may require Distributor (solely with the consent of Distributor) to enter into a distribution agreement with  Accuray pursuant to Section 3.2 of the Strategic Alliance Agreement providing, among other things, that Distributor will obtain and  maintain all required import licenses and will act as the importer of record for the Products and Services ordered by such Customer.     4.6. Warranty.     4.6.1. Scope of Warranty. Accuray will provide a warranty to each Customer that the Products will be free from material defects and  perform substantially in accordance with the written Specifications provided by Accuray as reflected in the regulatory  clearance at the time of sale for a period of one (1) year following Installation of the Products at Customer's facility, but not  to exceed eighteen (18) months following shipment of such Products to Distributor (Warranty Period). Installation of  the System shall occur upon completion by Accuray or the entity installing the System, as applicable, of Accuray's  acceptance test procedure demonstrating that the System substantially conforms to the written Specifications. If Accuray  does not perform the Installation, Distributor will notify Accuray in writing within ten (10) days following Installation  (including any testing procedures undertaken by Customer or its installation service provider). In no event shall  Distributor, Customer or their respective agents use the System (or any portion thereof) for any purpose before Installation  thereof without the express written approval of Accuray. Distributor      8





     shall indemnify and hold Accuray harmless from any such use. Accuray makes no warranty that the operation of any  software will be uninterrupted or error-free. Except as set forth in the preceding sentences, Accuray makes no warranties or  representations to Customers or to any other party regarding any Products or Services provided by Accuray. TO THE  FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ACCURAY DISCLAIMS ALL OTHER WARRANTIES AND  REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED  WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES  ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.     4.6.2. Hardware and Software. If a Customer notifies Accuray in writing during the Warranty Period of a defect in a Product that  causes the Product to fail to conform to the foregoing warranty, Accuray shall at its option either repair or replace the non- conforming Product or, if in Accuray's opinion such repair or replacement is not commercially reasonable, Accuray shall  refund a pro-rated portion of the price paid by the Customer for such Product calculated based on a straight-line  depreciation over a 5-year period beginning on the date of delivery. This will be Accuray's sole and exclusive obligation  and such Customer's sole and exclusive remedy in relation to defective Products and parts.     4.6.3. Software and Bug Fixes. Notwithstanding Section 4.6.2, for a period of 10 years following Installation of a System, Accuray will  provide to Customer, without charge, Bug Fixes with respect to any software included in the System. This is Accuray's  sole and exclusive obligation and Customer's and Distributor's sole and exclusive remedy in relation to defective software.  By way of clarification, Accuray's sole obligation shall be to make such Bug Fixes available to Customer, and Accuray  shall have no obligation (unless otherwise agreed by the Customer and Accuray) for installation or implementation of such  Bug Fixes at the Customer's site. Bug Fix means an error correction or minor change in the existing software and/or  hardware configuration that is required in order to enable the existing software and/or hardware configuration to perform to  the existing functional specification(s).     4.6.4. Safety Updates. Notwithstanding Section 4.6.2 and any obligations according to law, for a period of 10 years following  Installation of a System, Accuray will provide to Customer, without charge, Safety Updates with respect to any hardware or  software included in the System. This is Accuray's sole and exclusive obligation and Customer's and Distributor's sole  and exclusive remedy in relation to any Safety Update required to be provided by applicable law in the Customer's  jurisdiction. By way of clarification, Accuray's sole obligation shall be to make such Safety Update available to Customer,  and Accuray shall have no obligation (unless otherwise agreed by the Customer and Accuray) for installation or  implementation of such Safety Update at the Customer's site. Safety Update means an error correction or change in the  existing software and/or hardware configuration that is required for safety in order to enable the existing software and/or  hardware configuration to perform to the existing functional specification(s) in accordance with applicable law in the  Customer's jurisdiction.     4.6.5. Warranty Exclusions. All warranty replacement of Products and parts shall be limited to malfunctions which are due and  traceable to defects in original material or workmanship of Products. The warranties set forth in this Section 4.6 shall be  void      9





     and of no further effect in the event of abuse, accident, alteration, misuse or neglect of Products, including but not limited  to user modification of the operating environment specified by Accuray and user modification of any software.     4.6.6. Warranty Basis. Any limitation of liability under any warranty contained herein shall be an integral part of such warranty,  which limits its scope (Section 444, second alternative German Civil Code shall not apply). Any limitation of liability for any  defects contained herein shall be void insofar as Accuray has intentionally failed to disclose such defect.     4.7. Installation. Unless otherwise agreed by Accuray and Distributor (including, without limitation, pursuant to the terms of any  distribution agreement entered into pursuant to Section 3.2 of the Strategic Alliance Agreement), Accuray shall be responsible for  installation of Accuray Products at Customer sites.     4.8. Service Agreements. Accuray will provide its then current Service Agreements to Distributor from time to time during the Term of this  Agreement and any extension thereof, or upon request from Distributor. All prices will be stated in US Dollars, unless another  currency is agreed upon in writing by Accuray. Such Service Agreements are to be offered to the Customer on the terms as set forth  in those agreements, unless otherwise agreed to in writing by an authorized representative of Accuray. Accuray shall execute a  Service Agreement with the Customer upon receipt of (i) a copy of such Service Agreement executed by the Customer, and (ii) any  payments then due under such Service Agreement; provided, however, that Accuray shall have no obligation to enter into such  Service Agreement if it materially deviates from the form Service Agreement provided to Distributor; provided, further, that if  Accuray does not have a direct presence in or Accuray does not have a distributor for the sales of Systems specifically for the  country in which the Customer requests Services, as a condition to any sale of Services to such Customer, Accuray may require  Distributor (solely with the consent of Distributor) to enter into a distribution agreement with Accuray pursuant to Section 3.2 of the  Strategic Alliance Agreement providing, among other things, that Distributor may (at its sole discretion) enter into such Service  Agreement with such Customer and will provide directly to such Customer the Services required to be performed under such Service  Agreement. If Accuray enters into such Service Agreement with such Customer, Accuray will be responsible for and will provide to  such Customer (either directly or through one or more of its distributors) the services required to be performed under such Service  Agreement.     4.9. Customer Training. If training of Customer's personnel is included in a Purchase Order confirmed by Accuray, Accuray will provide  such training in accordance with Accuray's then current training offerings and will coordinate with the Customer in order to provide  such training at Accuray's facility in Sunnyvale, California (or such other facility as may be agreed upon by Customer and  Accuray). For the purposes of such training, Accuray will be responsible for the travel and accommodation expenses of its  personnel, while Customer shall be responsible for the travel and accommodation expenses of its personnel. All Customer training  provided by Accuray will be conducted in English and, to the extent a Customer or its personnel do not have adequate English  language reading and comprehension skills, Accuray will provide an interpreter and translation services sufficient to enable the  Customer and its personnel to meaningfully and effectively participate in Accuray training courses.     10

      4.10. Customer Support. Unless otherwise agreed by Accuray and Distributor (including, without limitation, pursuant to the terms of any  distributorship agreement entered into pursuant to Section 3.2 of the Strategic Alliance Agreement), Accuray will provide guidance  to billing and reimbursement personnel of each Customer regarding regulatory and billing requirements and reimbursement for  treatment provided with Products under radiosurgery reimbursement codes. Accuray will coordinate and assist the Customer with  room evaluation, architecture support and quality assurance issues in relation to Customer installation sites.     4.11. Additional Support and Training. Accuray will provide additional service, support, or training in relation to Products or Services at  Customer's request, to be ordered separately and directly from Accuray, and priced on a time and materials basis according to  Accuray's then current price lists.     4.12. Distributor Personnel Sales Training. Accuray shall provide training of Distributor's sales personnel responsible for sales of Products  and Services to Distributor free of charge. Such training shall be at the times, in such locations, and in the scope agreed upon by  Distributor and Accuray in good faith; provided, however, that such training shall be provided to such Distributor personnel in  each Accuray Region at least once per year. Each party shall be responsible for all costs and expenses, including travel and lodging,  incurred by it or its personnel to attend or provide such training. Accuray will provide additional training to Distributor's personnel  as may be reasonably requested by Distributor on a time and materials basis according to Accuray's then current price lists.     4.13. Support of Distributor's Efforts. Accuray shall, at its own expense:     4.13.1. assign a dedicated marketing point of contact for Distributor's marketing and sales personnel, which employee may be based  at any of Distributor's facilities as requested by the Steering Committee; and     4.13.2. provide global sales and marketing support, including support for individual sales opportunities, to Distributor; provided,  however, that the scope, duration, location, availability, and timing of such support shall be subject to commercially  reasonable limits and shall be determined pursuant to Section 3.3(a)(iii) of the Strategic Alliance Agreement.     4.14. Compliance with Laws. Accuray will be responsible for complying with (i) applicable U.S. laws, (ii) where Products are being shipped  to Distributor and unless otherwise agreed by Accuray and Distributor, applicable laws, codes, registrations, regulations, and  ordinances related to the export of the Products to Distributor, and (iii) any other applicable laws as they pertain to the Products, the  regulatory clearance, and safety in accordance with Accuray's written Specifications for the intended use. In addition, Accuray  shall be responsible for compliance with any applicable law, code, registration, regulation, and ordinance related to the export of the  Products or Services to Customer and/or Distributor, if any (the Export Regulations), and Accuray shall be liable for any expenses  and/or damages incurred by Distributor due to any non-compliance with such Export Regulations by Accuray (unless Accuray is  not responsible for such non-compliance). Accuray shall advise Distributor in writing within two weeks of the confirmation of the  Purchase Order of any information or data required by Accuray to comply with an Export Regulation, including without limitation:





(a) All applicable export list numbers, including the Export Control      11





     Classification Number according to the U.S. Commerce Control List (ECCN);     (b) The statistical commodity code according to the current commodity classification for foreign trade statistics and the  HS (Harmonized System) coding;     (c) The country of origin (non-preferential origin); and     (d) Accuray's declaration of preferential origin (in case of European suppliers) or preferential certificates (in case of  non-European suppliers).     4.15. Spare Parts. Upon a termination of this Agreement, Accuray shall continue to make available to Customers support services on  commercially reasonable terms, including, without limitation, spare parts for the Systems for a minimum period of 10 years after the  last shipment of a System pursuant to this Agreement.     5. COMPENSATION AND PAYMENT     5.1. Orders. Distributor shall make an offer to a Customer based on the Quote provided by Accuray pursuant to the process set forth in  Section 2.3. Submission and acceptance of an order shall be completed pursuant to Section 2.3.3.     5.2. Purchase Price.     5.2.1. Distributor shall pay the prices listed in the applicable Purchase Order (unless prior written approval by Accuray for  application of an earlier price list is obtained) for the Products, including any Spare Parts, less any applicable discounts as  specified in Exhibit A hereto. Distributor shall receive a commission in the amount specified in Exhibit A hereto for any  Service Agreement entered into by Accuray with Customer pursuant to Section 4.8.     5.2.2. All costs of delivering the Products to the Distributor or Customer (including, but not limited to, costs for land, air and/or  ocean freight, insurance, port, customs and forwarding fees, if any), as well as any rigging and unloading of the Products,  shall be paid as provided in the F.C.A. terms. Unless advised otherwise, all prices quoted by Accuray include the cost of  packing and crating for delivery.     5.2.3. Taxes. By way of clarification, all Accuray prices referenced in this Agreement, and all other amounts payable by Distributor to Accuray pursuant to this Agreement are net of any value added tax or federal, state, county or municipal sales or use tax,  excise or similar charge, withholding tax, or other tax assessment (except for any taxes that are assessed against income)  (collectively, the Taxes). The parties agree that it is their intention that Accuray will not bear any economic burden  relating to the Taxes. Subject to the foregoing and to compliance with applicable laws, Accuray and Distributor agree to  cooperate with each other as reasonably requested to establish the responsibilities of the parties relating to the payment  and withholding of Taxes, filing of documents, and other matters in order to achieve an efficient tax result.     5.3. Compensation. Except as otherwise provided herein, Distributor's only compensation for its efforts on Accuray's behalf shall be the  margins it earns on the resale of Products and      12





     commissions on sales of Services, and Distributor shall bear all of the expenses which it incurs in making those efforts.  Notwithstanding the foregoing, in the event that Accuray does not approve the issuance of a Quote to a potential Customer and  later contracts directly (or through one of its distributors) with such potential Customer, of which Accuray shall inform Distributor  without undue delay, Distributor shall receive credit for any sales of Systems to such potential Customer pursuant to and subject to  the fulfillment of the conditions set forth in Section 3.4 of the Strategic Alliance Agreement.     5.4. Payment.     5.4.1. System Purchase Payments. Payment for the purchase of a System shall be made by Distributor to Accuray in US Dollars in  the form of either (1) an irrevocable trade finance letter of credit or (2) wire transfer as further described in Sections 5.4.1.1  (Letter of Credit) and 5.4.1.2 (Wire Transfer), respectively below. Accuray shall bear the cost of any bank charges assessed  by its bank for a letter of credit and any commission charge for a wire transfer. Past due balances on any reasonably  undisputed amount shall bear interest at the rate of 0.5% per month or, if lower, the maximum amount permitted by  applicable law. If Distributor is a business person (as defined in § 14 of the German Civil Code, BGB), the payment shall  be deemed past due only if Distributor fails to pay in response to a payment demand note received after payment becomes  due.     5.4.1.1. Letter of Credit. An irrevocable trade finance letter of credit issued by Distributor's bank, confirmed by a bank  designated by Accuray in all respects and delivered to Accuray upon the acceptance of the Purchase Order  by Accuray. The letter of credit will provide that Accuray can draw against the letter of credit according to the  following schedule:     5.4.1.1.1. US $100,000 (non-refundable but, in case of cancellation of the Purchase Order, automatically applied  to Distributor's next purchase of a System) upon Accuray's acceptance of the Purchase  Order, which must be at least four (4) months prior to the Distributor's proposed shipment  date; and     5.4.1.1.2. Balance upon presentation of documents by Accuray evidencing shipment of the Products to  Distributor or Customer as designated in the Purchase Order.     5.4.1.2. Wire Transfer. A wire transfer made in advance of the date payment is due, made in U.S. dollars, to a bank selected  by Accuray, according to the following schedule:     5.4.1.2.1. US $100,000 (non-refundable but, in case of cancellation of the Purchase Order, automatically applied  to Distributor's next purchase of a System) upon Accuray's acceptance of the Purchase  Order, which must be at least four (4) months prior to the Distributor's proposed shipment  date; and     13





     5.4.1.2.2. The remaining balance is due net 30 days after delivery by Accuray at the specified F.C.A. location  pursuant to Section 4.1.2 and receipt by Distributor of a reasonably undisputed invoice.     5.4.1.3. Tax Exempt Status. In the event that Customer claims tax exempt status in the country where the Accuray System is  to be installed, Customer must provide Accuray with sufficient evidence of such tax exempt status prior to  delivery of the Accuray System.     5.4.2. Products, Spare Parts and Upgrade Payments. Full payment of the purchase price for Products (other than Systems), Spare  Parts and upgrades shall be made by Distributor to Accuray in US Dollars by wire transfer to a bank selected by Accuray  and is due net 30 days after delivery by Accuray at the specified F.C.A. location pursuant to Section 4.1.2 and receipt by  Distributor of a reasonably undisputed invoice. Accuray shall bear the cost of any commission charge for a wire transfer.     5.4.3. Payments by Customers Direct to Accuray. If agreed to in writing by Accuray, Customers may make payments directly to  Accuray using the payment methods and schedules set forth in Sections 5.4.1.1 (Letter of Credit), 5.4.1.2 (Wire Transfer)  and 5.4.2 (Products, Spare Parts and Upgrade Payments) above. Should Customers make such payments to Accuray and  such payment include the Distributor's margin, then Accuray will pay such margin to Distributor once payment is received  from the Customer and cleared by Accuray's designated bank.     5.5. Collections. Notwithstanding Section 5.4.3 above, Distributor shall be solely responsible for determining the creditworthiness of and  collecting payment from its Customers. The risk of non-collection from the Customer will be borne entirely by Distributor, which  shall be responsible for making timely payment to Accuray for Products whether or not Distributor is successful in collecting from  its Customer. In the event that full payment is not received by Accuray, Accuray shall not be liable to Distributor for any margin or  commission unless and until it has received payment of amounts sufficient to cover the costs incurred by Accuray to provide the  applicable Products to Distributor and the applicable Services to Customer (Accuray Cost). Distributor acknowledges and agrees  that it shall not be entitled to receive payment of any margin or commission until Accuray has received payment of the Accuray  Cost amount in relation to the applicable Products and Services.     6. TERM AND TERMINATION     6.1. Term. Unless otherwise agreed in writing by Accuray and Distributor and subject to the termination rights contained in this Agreement,  this Agreement shall begin on the Effective Date and shall continue until the termination of the Strategic Alliance Agreement;  provided, however, that if a Termination Election relating to this Agreement is made pursuant to Section 10.3 of the Strategic  Alliance Agreement prior to such termination, this Agreement shall terminate 36 months after such Termination Election (the  Term).     6.2. Termination.     6.2.1. Breach. If either party commits a material breach of a material provision of this Agreement, if such breach was not excused as a  force majeure pursuant to Section 12.12, and if the breaching party has not cured such breach to the other party's      14





     reasonable satisfaction within 30 days after written notice from the other party specifying the nature of such breach, then  the other party shall have the right to terminate this Agreement upon delivery of written notice to the breaching Party.     6.2.2. Bankruptcy. A party may terminate this Agreement effective upon delivery of written notice to the other party if: (i) any  assignment for the benefit of the other party's creditors is made, (ii) the other party voluntarily files a petition in  bankruptcy or similar proceeding, (iii) the other party has such a petition in bankruptcy or similar proceeding involuntarily  filed against it, (iv) the other party is placed in an insolvency proceeding, (v) if an order is entered appointing a receiver or  trustee of the other party, or (vi) a levy or attachment is made against a substantial portion of the other party's assets, and,  with respect to any event set forth in clauses (iii) through (vi) above, such position, placement, order, levy or attachment is  not dismissed or removed within 30 days from the date of such event.     6.3. Effect of Termination. Upon expiration of the Term (or other termination of this Agreement):     6.3.1. Transition of Activities. Accuray and Distributor agree to negotiate in good faith an orderly transition of Distributor's  distribution responsibilities and activities to Accuray or a third party designated by Accuray and Distributor agrees to  assist in the transition.     6.3.2. Pending Obligations. Each party must continue to fulfill any obligations, including but not limited to pending Quotes, accrued  before the effective date of such termination.     6.3.3. Return of Materials. Distributor shall transfer to Accuray upon Accuray's request: any regulatory clearances, licenses or  permits obtained for conduct of the business pursuant to this Agreement; any Confidential Information; and other items as  negotiated in good faith between the parties. Furthermore, each of the parties agree to cooperate fully with the other for  any reasonable transition assistance required in the case of termination or expiration of this Agreement.     6.4. No Termination Compensation. Distributor waives any rights it may have to receive any compensation or indemnity upon termination  or expiration of this Agreement, other than as expressly provided in this Agreement. Distributor acknowledges that it has no  expectation and has received no assurances that any investment by Distributor in the promotion of the Products will be recovered  or recouped or that Distributor will obtain any anticipated amount of profits by virtue of this Agreement.     6.5. Accruals. No termination or expiration of this Agreement will terminate any obligation of payment which has accrued prior to the  effective date of such termination or expiration.     7. DISPUTE RESOLUTION. Any contractual issues or disputes arising out of or related to this Agreement shall be resolved pursuant to the  procedures set forth in Section 11.3 of the Strategic Alliance Agreement.     8. CONFIDENTIALITY. Accuray and Distributor agree that all Confidential Information furnished to a party or its Affiliates, employees,  consultants, and advisors in connection with this Agreement will      15





     be subject to and the parties' rights and obligations with respect to such Confidential Information shall be governed by the Confidentiality  Agreement.     9. INTELLECTUAL PROPERTY RIGHTS.     9.1. Notice of Infringement. Distributor undertakes to inform Accuray without undue delay if it first becomes aware of any possible  infringement by third parties of Accuray's proprietary rights, including, without limitation, a duplication of the Products or any other  patent, trademark or copyright or other infringement of Accuray's intellectual property rights in connection with the Products, and  to cooperate with Accuray at Accuray's sole expense regarding any legal action in relation to such infringement, which in  Accuray's judgment, is necessary or desirable.     9.2. Third Party Claims. If Distributor promptly notifies Accuray of a claim it has received or of which it becomes aware that the Products or  any part thereof purchased by Distributor hereunder infringes a third party's proprietary rights, then Accuray agrees, at its  discretion, either to (i) defend the claim at its expense, with the cooperation of Distributor, provided, that Accuray shall reimburse  Distributor for any reasonable costs or expenses actually incurred by Distributor in connection with providing such cooperation, or  (ii) make changes in the Product or part thereof so that they are at least functionally equivalent and non-infringing or replace the  Products with alternatives that are at least functionally equivalent to avoid the claim, or (iii) purchase the right to use such  proprietary right or (iv) refund to the purchaser the net book value of the Product less a reasonable deduction for use, wear and tear,  and depreciation upon Accuray taking possession of such Product. Notwithstanding Section 10.1, the foregoing states the entire  liability of Accuray with respect to infringement of patents or other proprietary rights by the Products or part thereof, or by their  operation. To remove all doubt, Accuray has no obligation regarding any claim based on any of the following: (a) modification of  the Products by any person other than Accuray; (b) combination, operation or use of the Products with other products, parts,  components, materials or accessories not provided by Accuray; or (c) infringement by a product not manufactured by Accuray.     9.3. Intellectual Property Ownership and License. Accuray and its licensors retain all intellectual property rights in the Products. Accuray  hereby grants Distributor or Customer a nonexclusive, non-transferable, royalty-free right to use the software provided in  connection with the Products only in machine readable form and only in combination with the Products with which such software is  provided. No such software shall be copied or decompiled in whole or in part by Distributor or Customer, and Distributor or  Customer shall not disclose or provide any such software, or any portion thereof, to any third party. Accuray hereby grants to  Customers of Products a non-exclusive, non-transferable and royalty-free license under any Patents owned by Accuray or the  licensing of which is controlled by Accuray that, but for this license, would be infringed by the use of such Products in accordance  with the applicable Specification. All rights in intellectual property not expressly granted hereunder are reserved by the owner of  such intellectual property.     9.4. Product Labeling. Products shall be labeled and identified at point of manufacture. Accuray shall be responsible for compliance with all  applicable local laws and regulations relating to labeling. Such labeling and identification shall be only as acceptable to Accuray and  may be altered or added to by Distributor only as previously agreed upon in writing by Accuray. The failure of Distributor to  comply with these provisions shall be considered a material default under the terms of this Agreement.     16





     9.5. Trademarks. Distributor acknowledges the validity and proprietary value of Accuray's trademarks including, but not limited to,  CyberKnife. Accuray shall retain sole ownership of all goodwill associated with the Products, as represented and symbolized by  the associated trademarks, and Distributor shall not register any of Accuray's trademarks in its name. Distributor undertakes to  display Accuray's trademarks solely in connection with identifying Accuray in the sale and marketing of Products hereunder.  Distributor shall not remove copyright notices or any trademarks from the Products. Distributor shall not be entitled to use said  trademarks in conjunction with Distributor's own trademarks or for any other purpose, except in the manner authorized by Accuray,  which authorization will not be unreasonably withheld and in compliance with distribution standards and specifications established  by Accuray. If Accuray determines in its sole discretion that Distributor is not meeting such standards and specifications,  Distributor shall immediately, at Accuray's instructions, take all steps necessary to ensure that such standards and specifications  are met or cease all further use and display of the trademarks. In the event of expiration or termination of this Agreement, Distributor  shall immediately discontinue all use of Accuray's trademarks except for the sale of Distributor's inventory of Products.     10. INDEMNITIES.     10.1. Accuray Indemnity. Accuray will defend or settle any action brought against Distributor and shall indemnify and hold Distributor  harmless from any liability, damages and expenses (including court costs and reasonable attorneys' fees) to the extent that it is  based upon a third-party claim that a Product, as provided by Accuray to Distributor under this Agreement, infringes any patent  issued in the United States, Germany, or in the country in which the Customer requested delivery of the Product or any copyright or  misappropriates any trade secret, and will pay any costs and damages made in settlement or awarded against Distributor in final  decision resulting from any such claim, provided that Distributor: (i) gives Accuray prompt notice of any such claim; (ii) gives  Accuray sole control of the defense and any related settlement of any such claim; and (iii) gives Accuray, at Accuray's expense, all  reasonable information, assistance and authority in connection with the foregoing. Accuray will not be bound by any settlement or  compromise that Distributor enters into without Accuray's express prior written consent.     10.2. Products Liability Indemnity. Accuray will defend or settle any action brought against Distributor and shall indemnify and hold  Distributor harmless from any liability, damages and expenses (including court costs and reasonable attorneys' fees) to the extent  that it is based upon a third-party claim that a Product, as provided by Accuray to Distributor under this Agreement is unsafe when  used according to Accuray's written Specifications for its intended use, and will pay any costs and damages made in settlement or  awarded against Distributor in final decision resulting from any such claim, provided that Distributor: (i) gives Accuray prompt  notice of any such claim; (ii) gives Accuray sole control of the defense and any related settlement of any such claim; and (iii) gives  Accuray, at Accuray's expense, all reasonable information, assistance and authority in connection with the foregoing. Accuray will  not be bound by any settlement or compromise that Distributor enters into without Accuray's express prior written consent.     10.3. Injunctions. If Distributor's rights to use and distribute a Product under the terms of this Agreement are, or in Accuray's opinion are  likely to be, enjoined due to the type of claim specified in Section 10.1 (Accuray Indemnity), then Accuray may, at its sole option  and expense: (i) procure for Distributor the right to continue to use and distribute such Product under the terms of this Agreement;  (ii) replace or modify such Product so that it is non-     17





     infringing; or (iii) if options (i) and (ii) above cannot be accomplished despite Accuray's reasonable efforts, then Accuray or  Distributor may terminate this Agreement with respect to such Product and Accuray shall credit to Distributor a pro-rated portion of  the amount paid for such Product based on a straight-line depreciation calculated over a 5-year period beginning on the date of  delivery of the Product, provided that all units of such Product are returned to Accuray in an undamaged condition.     10.4. Indemnity Exclusions. Notwithstanding the foregoing, Accuray will have no obligation under Sections 10.1 (Accuray Indemnity) or  10.2 (Products Liability Indemnity) for any third-party claim to the extent that such claim results from: (i) use of any Products not in  accordance with Accuray's written Specifications; (ii) use or combination of the Products with other items, such as other equipment,  processes, programming applications or materials not furnished by Accuray; (iii) compliance by Accuray with Distributor's or  Customers' designs, specifications or instructions; (iv) modifications to a Product not made by or at the express written direction of  Accuray; (v) Distributor's failure to use updated or modified Products provided by Accuray, provided that such updated or  modified Products would have avoided the basis for such claim; or (vi) Distributor's use or distribution of a Product other than in  accordance with this Agreement. The foregoing clauses (i) to (vi) are referred to collectively as Indemnity Exclusions.     10.5. Limitation. WITHOUT AFFECTING STRICT PRODUCT LIABILITY UNDER MANDATORY APPLICABLE LAW, THE FOREGOING  PROVISIONS OF THIS SECTION SET FORTH ACCURAY'S SOLE AND EXCLUSIVE LIABILITY AND DISTRIBUTOR'S SOLE  AND EXCLUSIVE REMEDY FOR ANY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY  RIGHTS OR PROPRIETARY RIGHTS OF ANY KIND.     10.6. Distributor Indemnity. Distributor will defend or settle, indemnify and hold Accuray harmless from any liability, damages and expenses  (including court costs and reasonable attorneys' fees) to the extent based upon a third-party claim based on or otherwise  attributable to: (i) Distributor's acts or omissions not in accordance with this Agreement or (ii) any misrepresentations made by  Distributor with respect to Accuray or the Products or Services.     11. LIABILITY.     11.1. Liability for Death or Injury. The liability of any party with respect to death or injury to any person is subject to and governed by the  provisions of applicable law.     11.2. Limitation on Liability. WITHOUT AFFECTING STRICT PRODUCT LIABILITY UNDER MANDATORY APPLICABLE LAW,  SECTION 10, OR THE RESPECTIVE OBLIGATIONS OF THE PARTIES UNDER THE CONFIDENTIAILITY AGREEMENT AND  EXCEPT FOR BREACHES ASSOCIATED WITH THE UNAUTHORIZED USE OF INTELLECTUAL PROPERTY, IN NO EVENT  SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR  TORT DAMAGES, INCLUDING WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA,  LOSS OF PROFITS OR LOSS OF BUSINESS ARISING OUT OF OR IN CONNECTION WITH THE MATTERS CONTEMPLATED  BY THIS AGREEMENT, WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.     18





     11.3. Liability Cap. Without affecting Section 10 or the respective obligations of the parties under the Confidentiality Agreement and except  for any liability (i) relating to any breach associated with the unauthorized use of Intellectual Property, (ii) arising from the  intentional breach or willful misconduct of a party, or (iii) arising from the non-compliance with any mandatory applicable law or  regulation, the total aggregate liability of one party to another party for any claim relating to any breach of this Agreement (or any  Purchase Order or other agreement entered into in connection with this Agreement) (a Claim) shall be limited to the aggregate  amount of the purchase prices paid by Distributor to Accuray for Products pursuant to this Agreement (or any Purchase Order or  other Agreement entered into in connection with this Agreement) during the twelve calendar months preceding the date of the  notification to the other party of such Claim less any amounts paid or payable in respect of any other Claim of which the other party  was notified during such twelve month period.     11.4. Notice; No Waiver. Each party shall not unreasonably delay notification to the other party of any Claim. Nothing in this Section 11  shall be deemed a waiver by any party of any right to injunctive relief to the extent it is available to such party.     12. MISCELLANEOUS PROVISIONS     12.1. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the Federal Republic of Germany excluding the United Nations Convention on Contracts of International Sale of Goods (CISG) and the provisions of German private  international law.     12.2. Modification. Notwithstanding any provision to the contrary in this Agreement, Distributor and Accuray may agree, by execution of a  written agreement, to modify any term or provision of this Agreement, including, without limitation, the duties of the parties, the  Quote and Purchase Order approval procedure, the pricing of the Products and Services, and the payment terms, with respect to any  single or number of Customer opportunities, Quotes, or Purchase Orders.     12.3. Publicity. Both parties may not use the other party's name or trademarks on its literature, signs, or letterhead, nor may it make press  releases or other public statements disclosing its relationship under this Agreement or otherwise without the prior written consent  of the other party, which shall not be unreasonably withheld or delayed.     12.4. Goodwill. Distributor agrees that it will help develop and work to preserve the goodwill of Accuray, and will not unreasonably harm  that goodwill. In the event of termination of this Agreement for any reason, Distributor will not do anything to unreasonably harm  the goodwill of Accuray.     12.5. Titles. Titles of the various paragraphs and sections of this Agreement are for ease of reference only and are not intended to change  or limit the language contained in those paragraphs and sections.     12.6. Assignment. Neither this Agreement, nor any of the rights, interests, or obligations under this Agreement may be assigned or  delegated, in whole or in part, by operation of law or otherwise, by any party without the prior written consent of the other party,  and any such assignment without such prior written consent shall be null and void; provided, however, that this Agreement may be  assigned by a Party in connection with a Change in Control of such party, subject to the specific termination and other rights set  forth in the Strategic      19





     Alliance Agreement upon such Change in Control; provided, further, that Siemens may assign its rights and obligations under this  Agreement to any Distributor that agrees, in writing, to be bound by and comply with the terms and conditions of this Agreement  and the provisions of the Strategic Alliance Agreement, provided, that no such assignment shall relieve Siemens of its obligations  hereunder or thereunder if such Distributor does not perform such obligations. Subject to the foregoing, this Agreement will be  binding upon, inure to the benefit of, and be enforceable by, the parties and their respective successors and permitted assigns.     12.7. Conduct.     12.7.1. Both parties prohibit the harassment of their employees and contractors in any form. They consider harassment of, or  discrimination against, their employees and affiliated persons a very serious matter and will investigate all complaints of  inappropriate conduct. Where the investigation uncover harassment or discrimination, the other party may take  reasonable corrective action, including, without limitation, termination of this Agreement for material breach.     12.7.2. During the Term, Accuray shall comply, in all material respects, with Siemens' Code of Conduct, attached hereto as Exhibit B  (the Code of Conduct). Siemens shall give Accuray written notice of any change to its Code of Conduct as soon as  reasonably practicable.     12.7.3. During the Term, Distributor shall comply, in all material respects, with the Business Conduct Guidelines of Siemens and all  other Siemens internal regulations and guidelines.     12.8. Quality Assurance Agreement. During the Term and in connection with its performance of its duties under this Agreement, Accuray  shall comply, in all material respects, with Siemens' Quality Assurance Agreement attached hereto as Exhibit C, with the exception of  any provisions thereof related to barcoding.     12.9. Notices. All notices and other communications hereunder shall be in writing and shall be deemed duly given (a) on the date of delivery  if delivered personally, (b) if by facsimile, upon written or electronic confirmation of receipt (if sent during business hours of the  recipient, otherwise on the next business day following such confirmation), (c) on the first business day following the date of  dispatch if delivered utilizing a next-day service by a recognized next-day courier, (d) on the earlier of confirmed receipt or the fifth  business day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid. All  notice hereunder shall be delivered to the addresses set forth below:     20



   12.10. Waiver. The waiver of any breach or default of any provision of this Agreement will not constitute a waiver of any other right  hereunder or of any subsequent breach or default.     12.11. Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining  provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable  to the maximum extent permissible by law.     12.12. Survival. The expiration or termination of this Agreement for any reason will not release either party from any liabilities or obligations  set forth herein which (i) the parties have expressly agreed will survive any such expiration or termination; or (ii) remain to be  performed or by their nature would be intended to be applicable following any such termination or expiration. In addition to the  foregoing, the following provisions shall survive any termination or expiration of this Agreement: Section 3.8 (Warranty); Section  3.11 (Compliance with Laws); Section 4.6 (Warranty); Section 6.2 (Effect of Termination); Section 6.3 (No Termination  Compensation); Section 6.4 (Accruals); Section 7 (Dispute Resolution); Section 8 (Confidentiality); Section 9 (Intellectual Property  Rights); Section 10 (Indemnities), Section 11 (Liability) and Section 12 (Miscellaneous Provisions).     12.13. Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement (except for the  payment of money) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts,  shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, acts of God or governmental  action.     12.14. Amendments. Any amendment or modification of this Agreement must be made in writing and signed by duly authorized  representatives of each party. For Accuray, a duly authorized representative must be any of the following: CEO, CFO, General  Counsel or Associate General Counsel.     12.15. English Language Requirement. This Agreement is written in the English language as spoken and interpreted in the United States of  America, and such language and interpretation shall be controlling in all respects.     12.16. Foreign Currency. Distributor acknowledges and agrees that it shall assume all risk associated with any fluctuation of foreign  currency exchange rates associated with its pricing of Products and Services to Customers in a currency other than US Dollars. All  payments made by Distributor to Accuray shall be in US Dollars.     12.17. Entire Agreement. This Agreement and the Strategic Alliance Agreement contain the entire agreement of the parties hereto with

To Accuray:    To Distributor:         Accuray Incorporated    Siemens AG  Attention: Chief Financial Officer    Henkestr. 127  1310 Chesapeake Terrace    91054 Erlangen  Sunnyvale, CA 94089    Germany  Facsimile: +1 (408) 789-4205    Attn: Healthcare General Counsel, Ritva Sotamaa  with cc to: General Counsel    Facsimile: + 49/### - ## - ####





respect to the subject matter hereof, and supersedes all prior understandings, representations and warranties, written and oral. If  any part of the terms and conditions stated herein are held void or unenforceable, such part will be treated     21





     as severable, leaving valid the remainder of the terms and conditions. In case of any contradiction between this Agreement and the  Strategic Alliance Agreement, the terms of this Agreement shall prevail.     12.18. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together  will constitute one and the same instrument.     SIGNATURE PAGE FOLLOWS     22





     IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the Effective Date by their duly authorized representatives.  The parties acknowledge and agree that this Agreement does not become effective until it has been signed by all parties indicated below.

      SIGNATURE PAGE TO MULTIPLE LINAC AND MULTI-MODALITY DISTRIBUTOR AGREEMENT

DISTRIBUTOR:     ACCURAY INCORPORATED:             By: /s/ Christian Klaussner     By: /s/ Euan Thompson             Print name: Christian Klaussner     Print name: Euan Thomson             Title: HIM OCS CFO     Title: President and Chief Executive Officer             Date: June 8, 2010     Date: June 7, 2010                        By: /s/ Holger Schmidt     By: /s/ Darren Milliken             Print name: Holger Schmidt     Print name: Darren Milliken             Title: HIM OCS CEO     Title: Senior Vice President and General Counsel             Date: June 8, 2010     Date: June 7, 2010





     SCHEDULE 2.3.2     ACCEPTANCE PROCESS     · Accuray shall have 5 Business Days from date of the submission of a proposed Multiple LINAC Purchase or Multi-Modality Purchases by  Siemens in which to either give or withhold approval of such purchase, with any failure to approve or disapprove of such purchase in  such period constituting disapproval;     · Such approval may be given by either Accuray's applicable General Regional Manager or a corporate representative of Accuray, expressly  designated with such approval authority in writing by Accuray to Siemens;     · Siemens' shall provide any information concerning such proposed purchase and the proposed purchaser as is reasonably requested by  Accuray;     · Such approval of any such proposed purchase must not be unreasonably withheld or delayed;     · In determining whether to grant such approval, Accuray may consider, at a minimum:     · Existing exclusivity arrangements between Accuray and Third Parties;     · Prior and current contact with the proposed purchaser by either Party;     · Other commercial relationships that either Party may have with the proposed purchaser;     · Bona fide concerns about the suitability of the proposed purchaser; and     · Whether Accuray or any of its distributors have obtained any required regulatory clearances and/or import licenses required in  connection with the proposed purchase.





     EXHIBIT A     DISTRIBUTOR DISCOUNTS ON PRODUCTS AND SERVICES



* Siemens distributor channel discount.     Siemens Bundled Sales Price= (List Price (1- (Volume Discount + Distributor Discount))

      EXHIBIT B     SIEMENS CODE OF CONDUCT     SIEMENS     Code of Conduct for Siemens Suppliers     This Code of Conduct defines the basic requirements placed on Siemens' suppliers of goods and services concerning their responsibilities  towards their stakeholders and the environment. Siemens reserves the right to reasonably change the requirements of this Code of Conduct due to  changes of the Siemens Compliance Program. In such event Siemens expects the supplier to accept such reasonable changes.     The supplier declares herewith:     · Legal compliance     ·  to comply with the laws of the applicable legal system(s).     ·  Prohibition of corruption and bribery     · to tolerate no form of and not to engage in any form of corruption or bribery, including any payment or other form of benefit conferred  on any government official for the purpose of influencing decision making in violation of law.     ·  Respect for the basic human rights of employees     · to promote equal opportunities for and treatment of its employees irrespective of skin color, race, nationality, social background,  disabilities, sexual orientation, political or religious conviction, sex or age;  · to respect the personal dignity, privacy and rights of each individual;  · to refuse to employ or make anyone work against his will;  · to refuse to tolerate any unacceptable treatment of employees, such as mental cruelty, sexual harassment or discrimination;  · to prohibit behavior including gestures, language and physical contact, that is sexual, coercive, threatening, abusive or exploitative;  · to provide fair remuneration and to guarantee the applicable national statutory minimum wage;  · to comply with the maximum number of working hours laid down in the applicable laws;  · to recognize, as far as legally possible, the right of free association of employees and to neither favor nor discriminate against  members of employee organizations or trade unions.      · Prohibition of child labor     · to employ no workers under the age of 15 or, in those countries subject to the developing country exception of the ILO Convention  138, to employ no workers under the age of 14.      · Health and safety of employees     · to take responsibility for the health and safety of its employees;  · to control hazards and take the best reasonably possible precautionary measures against accidents and occupational diseases;  · to provide training and ensure that employees are educated in health and safety issues;  · to set up or use a reasonable occupational health & safety management system(1)

Discount Type

List Price   Range  USD     Volume   Discount     Distributor   Discount*  Volume Discounts - Tier # 1    {*****}   {*****}   {*****}  Volume Discounts - Tier # 2    {*****}   {*****}   {*****}  Volume Discounts - Tier # 3    {*****}   {*****}   {*****}  Volume Discounts - Tier # 4    {*****}   {*****}   {*****}  Volume Discounts - Tier # 5    {*****}   {*****}   {*****}  Volume Discounts - Tier # 6    {*****}   {*****}   {*****}  Volume Discounts - Tier # 7    {*****}   {*****}   {*****}  Volume Discounts - Tier # 8    {*****}   {*****}   {*****}  Volume Discounts - Tier # 9    {*****}   {*****}   {*****}  Volume Discounts - Tier # 10    {*****}   {*****}   {*****}  Volume Discounts - Tier # 11    {*****}   {*****}   {*****}  Volume Discounts - Tier # 12    {*****}   {*****}   {*****}





   · Environmental protection     · to act in accordance with the applicable statutory and international standards regarding environmental protection;  · to minimize environmental pollution and make continuous improvements in environmental protection;  · to set up or use a reasonable environmental management system(1)     ·  Supply chain     ·  to use reasonable efforts to promote among its suppliers compliance with this Code of Conduct;  · to comply with the principles of non discrimination with regard to supplier selection and treatment.

(1) For further information see www.siemens.com/procurement/cr/code-of-conduct

      EXHIBIT C     SIEMENS QUALITY ASSURANCE AGREEMENT     Please see attached.

      SIEMENS     For internal use only  Copyright © Siemens AG 2002. All rights reserved.     Quality Requirement Med     Identification of Products and basic  requirements for packaging  Requirements for Suppliers     QR Med 1 A1     Siemens Medical Solutions  and affiliated Companies     Issued by Med Quality Management & Regulatory Affairs     Released 2007-09-28 by the Med Quality Steering Board (QSB)  Valid from 2007-11-01     04798372 AND 02S 04     1









   2

Contents

    1 Purpose and scope 3       2 Definitions and abbreviations 3          2.1 Material No. 3    2.2 Revision 3    2.3 Serial No. 3    2.4 Data Identifier 3    2.5 Expiration date 4    2.6 Batch 4    2.7 Shelf life  4         3 Reference documents 4       4 Requirements 4          4.1 Identification of parts, components and systems 4    4.2 Labeling of parts, components, systems and its packaging 4    4.3 Spacing  6         5 Basic requirements for packaging 7       6 Literature 7       7 Transition and retrospective measures 7       8 Changes to prior version 7       9 Attachments 7

Author:

Gabriele Franz    AX QP         Reviewer:

Volker Glahn    QM&RA  Philippe Hoxter    CSQ





     1 Purpose and scope     For Siemens Medical Solutions it is a basic requirement that any part, component or system is identified the same way worldwide. This document  lists the minimum requirements for suppliers of Siemens Medical Solutions describing  · how parts, components and systems are identified with their attributes and  · how attributes are labeled both as plain text as well as barcode on products and its packaging. Detailed specifications with regards to the labeling  of products are defined for the individual product concerned.     2 Definitions and abbreviations      2.1 Material No.     The Siemens Medical Solutions Material No. is used to uniquely identify products (parts, components and systems). It consists of an 8-digit  identification no. assigned by Siemens Medical Solutions.     Previously, the term Part no. was also used; it is replaced by the term Material No..      2.2 Revision     The Revision (abbreviated Rev.) serves to distinguish between different update statuses of hardware. It is assigned by Siemens Medical  Solutions.     The English term Revision replaces the German term Erzeugnisstand (abbreviated ES) and Ausführungsstand (abbreviated AS).     2.3 Serial No.     The Serial No. is an identifying attribute used to uniquely identify hardware or software with the same Material No. .     For suppliers the Serial No. can consist of up to 15 alphanumeric digits; it is however recommended to use only a 6 digit numerical Serial No. where  possible.     The Serial No. may contain a dash (-) or a slash (/), but no other special characters (e.g. # + * ?). Spaces, lower-case letters or language-specific  characters (e.g. Ä, Ö, Ü) are not allowed within the Serial No. .     The characters L, SxxL or Sxx at the end or the beginning of the Serial No. should be avoided (xx = any alphanumerical character).     For any Serial No. that is numeric only (i.e. has no letters) it is allowed to omit printing of leading zeros („0).     It is recommended to use the Serial No. of the supplier if it complies with the principles described above.     2.4 Data Identifier     Data Identifiers are used in the barcode to indicate that the information following the Data Identifier is data of a certain attribute. The Data  Identifier enables the barcode reading program to recognize that the following information represents a certain type of attribute.     Data Identifiers to be used:

   3

1P    Material No.   2P   Revision (for packaging only)  S    Serial No.   Q   Quantity (for packaging only)  14D    Expiration date (for packaging only)   T   Batch (for packaging only)





     2.5 Expiration date     The format of the expiration date shall be definite and specified as follows: YYYYMMDD     2.6 Batch     The batch is an alphanumeric ident number with 10 digits, used to identify parts manufactured or shipped together. Is no batch provided on the  packing but required, a batch is initiated in the stock.     2.7 Shelf life     If a shelf life is defined for parts the shelf life has to be filed in calendar days. (365 days per year)     3 Reference documents     n.a.     4 Requirements     4.1 Identification of parts, components and systems     Non-serialized parts (including spare parts) and components are identified using a Material No. . If necessary, different statuses of a part,  component or system can be distinguished via the Revision.     Serialized parts, components and systems are identified using the combination of Material No. and Serial No. . In addition, the Revision may be  used to distinguish between different statuses of hardware.     4.2 Labeling of parts, components, systems and its packaging     In general, requirements with respect to labeling have to be defined for the product concerned. However, minimum requirements are specified in  order to allow proper identification throughout all processes involved. This chapter lists those minimum requirements.     For all material numbers specified by Siemens the parts and its packaging have to be labeled according to the requirements listed below. The label  depends on whether a part/component/system     · is serialized  · contains a revision level  · is classified as an IVK (Installed Volume Component)  · shall be handled by expiration date or batch     Siemens defines those requirements per individual Material No. .     4







   5

Color     Usually white label with black printing other colors are allowed as long as barcode/plain text  can be read         Barcode content    1P <Material No. >       S <Serial No.>         Additionally for packaging only    2P <product Revision>       Q <quantity of products in this packaging (numeric only), usually 1>              It is not allowed to label Revision and Quantity on product identification labels!              e.g.: 1P01234567 as barcode *) (1P) Model No. 01234567           S1001 as barcode *) (S) Serial No. 1001

   Each symbol structure with start and stop character including Data Identifier (e.g. 1P or  S), but without symbol check character.              No space allowed between Data Identifier and attribute.              It is not allowed to print any other information in the barcode fields described above.         Barcode type    Code 39 according to ISO/IEC 16388         Narrow element (bar or space)    Min. 0,17 mm         Ratio of wide element to narrow element    Min. 2,25 : 1         Barcode height    Min. 2 mm, typical 4mm         Plain text (below barcode)    (1P) Model No.: <Material No.>       (S) Serial No.: <Serial No.>         Additionally for packaging only    (2P) Revision: <product Revision>       (Q) Quantity: <quantity of products in this packaging (numeric only), usually 1>              It is not allowed to label Revision and Quantity on product identification labels!

   Data Identifier (e.g. 1P or S) in brackets in front of data element title (e.g. ''Model No.  or Serial No.) in plain text!              e.g.: (1P) Model No.: 01234567 *) (1p) Model No. 01234567       (S) Serial No.: 1001 *) (S) Serial No. 1001

   Note: Due to 21CFR1020.30 section e) the term Model No. shall be used instead of the  term Material No. in plain text on all labels.



It is not allowed to print any other information near the data fields described above. If any  other information is printed, it must be printed in a manner so that it can't be misinterpreted  as being part of the fields described above; this can be done by printing other information at  the very right side of the label.         Additionally for products only



For IVKs or System IVKs, the text IVK or SYSTEM IVK shall be printed on the very  right side of the label. It has to be ensured that this text can't be misinterpreted as being part  of the Serial No. ; this can be done by printing this text on a different level. [Siemens  Medical Solutions decides and specifies whether a product is an IVK or System IVK.]









Additionally for packing only    The Expiration date of parts with Shelf life is fixed below the quantity as following:       Expiration date: <date of expiration> YYYYMMDD

   For parts which require a Batch, the batch is fixed below the Expiration date as following:  AAAAAAAAAA              For a transition period the batch can also be fixed above the material number         Font    Universe, if not possible use similar font (e.g. Helvetica)

*) In case of limited space, it is possible to print the bar code next to (and not under) the clear text.     4.3 Spacing      Minimum distances are:





   5) Expiration date and 6) Batch can be printed in barcode additionally.

(A)    Horizontal distance from edge (quiet zone)   >5 mm  (B)    Vertical distance from edge   >2 mm  (C)    Vertical distance between printing areas   >1 mm

Legend:  a) printing area for barcode             b) printing area for plain text

For a transition period the batch can also be fixed above the material number     6





     5 Basic requirements for packaging     Especially for spare parts appropriate packaging are required for the global shipping process. Should those packaging contain wood, generally  non wood-packaging according IPPC (International Plant Protection Convention) shall be used, but fumigation of such packaging is not  allowed.     Packaging shall be designed in a suitable way to protect the packed good against transportation load according to IEC 60721-3-2 class's 2M2/2K4     International pictograms following the IEC 60601 series shall be used for parts which fall under specific restrictions for transport or storage.     The specification of packaging especially for spare parts is within the responsibility of the Business Unit responsible for the product.     6 Literature     ISO/IEC 16388 Information technology — Automatic identification and data capture techniques — Bar code symbology specifications — Code  39.     IEC 60721-3-2 Classification of environmental conditions — Part 3: Classification of groups of environmental parameters and their severities —  Section 2: Transportation     7 Transition and retrospective measures     n.a.     8 Changes to prior version     CR-No.: 2007-005  Changes to previous edition 04798372 AND 02S 03:     · Chapter 2: Reference document IEC 60721-3-2 added   · Chapter 5: Design of packaging changed     CR-No. 2006-008 (CR N06/0207)  Changes to previous edition 04798372 AND 02S 02:     · Title: Added: and basic requirements for packaging  · Chapter 3.4 Data Identifier for Expiration Date and Batch added  · Chapter 3.5 — 3.7: Completely new  · Chapter 4.2 Added: Expiration date and batch  · Chapter 4.3. Added: labeling of Expiration Date and Batch,  · Chapter 5: Completely new     CR-No. 2006-01, 2006-02  Changes to previous edition 4798372 AND 02S 01:     · Chapter 2, 4.2 : EN 800 replaced by ISO/IEC 16388  · Chapter 4.2 : general requirements at the beginning stated more clearly, footnote added     9 Attachments     n.a.     7
[A]: Highlight the parts (if any) of this contract related to Warranty Duration that should be reviewed by a lawyer. Details: What is the duration of any  warranty against defects or errors in technology, products, or services  provided under the contract?


[Q]: Exhibit 10.14

Confidential Treatment Requested. Confidential portions of this document have been redacted and have been separately filed with the Commission.

SPONSORSHIP AGREEMENT

THIS SPONSORSHIP AGREEMENT (this Agreement) is made and entered into as of June 13, 2012 the (Effective Date), by and between Forty Niners SC Stadium Company LLC, a Delaware limited liability company (Forty Niners SC) having its principal place of business at 4949 Centennial Boulevard, Santa Clara, CA 95054, and Violin Memory, Inc., a Delaware corporation (Sponsor) having its principal place of business at 685 Clyde Avenue, Mountain View, CA 94043. For purposes of this Agreement, Forty Niners SC and Sponsor may each be referred to individually as a Party and may be collectively referred to as the Parties.

Recitals

WHEREAS, Forty Niners SC is an affiliate of Forty Niners Football Company LLC, (the Team), a Delaware limited liability company that owns the National Football League franchise for the professional football team known as the San Francisco 49ers.

WHEREAS, the Santa Clara Stadium Authority (SCSA) is building a new stadium in Santa Clara (the Stadium) which it will own and operate.

WHEREAS, Forty Niners SC entered into a lease with SCSA pursuant to which Forty Niners SC will have the right to sell sponsorships at the Stadium.

WHEREAS, Team entered into a sub-lease with Forty Niners SC and will play substantially all of its home games at the Stadium.

WHEREAS, Sponsor desires to become a sponsor of Forty Niners SC, and Forty Niners SC desires to grant Sponsor certain sponsorship rights, under the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the mutual promises and obligations set forth herein, the sufficiency of which is hereby acknowledged, the Parties agree as follows:

Agreement

1. Definitions.

(a) Affiliate means a person or entity that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, a Party. The term 'control' means the possession of the power to direct the management and policies of the person or entity, whether through ownership of voting securities, by contract or otherwise.

(b) Agreement has the meaning set forth in the initial paragraph.

(c) Contract Year means, for the first year of this Agreement, from March 1 of the year in which the Stadium is anticipated to open through February 28 of the following year. For all years thereafter, Contract Year means the period from March 1 through February 28 (or 29).





Confidential Treatment Requested. Confidential portions of this document have been redacted and have been separately filed with the Commission.

(d) Deposit has the meaning set forth in Section 5(b) of this Agreement,

(e) Effective Date has the meaning set forth in the initial paragraph.

(f) Forty Niners SC has the meaning set forth in the initial paragraph.

(g) Indemnitee has the meaning set forth in Section 11(a) of this Agreement.

(h) Lost Sponsorship Benefits has the meaning set forth in Section 7(c) of this Agreement.

(i) Marks means collectively the Team Marks and the Sponsor Marks.

(j) No­Signage Event has the meaning set forth in Section 3(c) of this Agreement.

(k) Party has the meaning set forth in the initial paragraph.

(l) Product and Services Category  means flash data storage and/or video surveillance products.

(m) Scheduled Opening Date has the meaning set forth in Section 7(a) of this Agreement.

(n) SCSA has the meaning set forth in the Recitals.

(o) Sponsor has the meaning set forth in the initial paragraph.

(p) Sponsor Marks means those trademarks and services marks set forth in Schedule 3, as may be updated by Sponsor from time to time, provided that in the event that Sponsor changes its name, the cost of effectuating the change of such Sponsor Marks shall be borne by Sponsor.

(q) Sponsorship Fee has the meaning set forth in Section 5(a) of this Agreement.

(r) Sponsorship Rights has the meaning set forth in Section 3(a) of this Agreement.

(s) Stadium has the meaning set forth in the Recitals.

(t) Team has the meaning set forth in the Recitals.

(u) Team Companies shall mean, collectively, Forty Niners SC and the Team.

(v) Team Marks means those trademarks and services marks set forth in Schedule 2.





Confidential Treatment Requested. Confidential portions of this document have been redacted and have been separately filed with the Commission.

*** Confidential material redacted and filed separately with the Commission.

2. Term.

(a) This Agreement shall commence on the Effective Date and shall continue for ten (10) Contract Years, unless terminated in accordance with the provisions of Section 6 of this Agreement or extended by renewal by written agreement of the Parties in accordance with the provisions of Section 13(o) of this Agreement (the Term).

(b) Provided the Agreement is not earlier terminated in accordance with its terms, *** shall have ***, from ***, to *** for the period ***. During such period, ***. The parties agree and acknowledge that ***. Nothing herein shall prevent Team from *** at any time, provided Team does not ***. Nothing herein shall prevent Team from ***, so long as such *** is limited to stating that the ***.

3. Grant of Sponsorship Rights.

(a) From the commencement of the first Contract Year through the end of the Term, Forty Niners SC will provide (or cause to be provided) to Sponsor those sponsorship rights (Sponsorship Rights) as set forth in Schedule 1 to this Agreement.

(b) License to Use Team Marks. From the commencement of the first Contract Year through the end of the Term, Forty Niners SC grants to Sponsor a limited license during the Term to (a) advertise and promote the fact that Sponsor is an official sponsor of the San Francisco 49ers, (b) use, reproduce and display the Team Marks in connection with advertising and promotion of Sponsor's goods and services in the Product and Services Category, and (c) promote Sponsor's sponsorship, subject to the terms and conditions of use set forth herein.

(c) No-Signage Events. Sponsor acknowledges and agrees that SCSA (directly or through its appointed manager) may determine in its sole discretion that certain events at the Stadium (other than Team events) from time to time (each referred to herein as a No-Signage Event), including, but not limited to the Olympic Games, World Cup Soccer, NCAA championships, college football bowl games, college football championship games and other events, may require that signage and advertising be covered, obscured or temporarily removed during the event or may prohibit signage or advertising for any party other than a sponsor of the event itself. Sponsor agrees that it shall not be entitled to Sponsorship Rights, signage or other advertising benefits in or around the Stadium for a reasonable period before, during and after a No-Signage Event.

(d) Does Not Cover Other Professional Sports Teams. Sponsor acknowledges and agrees that the Sponsorship Rights granted hereunder do not include any rights or benefits related to or in connection with any other professional sports team that may, from time to time, play its home games in the Stadium. SCSA and/or such other team shall have the right to grant Stadium-related rights and benefits to another sponsor within the Product and Services Category with respect to such other team's home games played at the Stadium.

(e) Grant of License by Sponsor. In order for Forty Niners SC to fulfill its obligations hereunder, Sponsor hereby grants to Forty Niners SC a limited license during the





Confidential Treatment Requested. Confidential portions of this document have been redacted and have been separately filed with the Commission.

*** Confidential material redacted and filed separately with the Commission.

Term to use, reproduce and display the Sponsor Marks in connection with advertising and promotion of Sponsor and its sponsorship.

4. Exclusivity.

(a) Exclusive Sponsor of the Team. Forty Niners SC acknowledges and agrees that, except as otherwise provided herein, the rights granted to Sponsor herein are exclusive to Sponsor within the Product and Services Category with respect to Forty Niners SC at the Stadium. Forty Niners SC shall not enter into a sponsorship agreement with a party with respect to the Product and Services Category, provided however, that Forty Niners SC shall be permitted to enter into a sponsorship agreement with any party that enters into a naming rights agreement with SCSA for the Stadium, provided that if SCSA enters into a naming rights agreement for the Stadium with a party that is in the Products and Services Category, Sponsor may immediately terminate this Agreement and receive a pro rated refund of any amounts paid by Sponsor for the unexpired Contract Year in which the termination occurs.

(b) Ability to Seek Other Sponsorships. Sponsor acknowledges and agrees that, notwithstanding the grant of exclusivity set forth in this Section 4, Team shall have the right to solicit and enter into sponsorships with other parties that are not known primarily or exclusively as suppliers or providers of any product or service within the Product and Services Category. Without limiting Section 4(a) above, the Parties agree that *** are, at the Effective Date, primarily or exclusively known as suppliers or providers in the Product and Services Category. Accordingly, Forty Niners SC shall not solicit or enter into sponsorships with such Parties.

5. Sponsorship Fee.

(a) Fee. In exchange for the Sponsorship Rights to be provided to Sponsor during each Contract Year of this Agreement, Sponsor shall pay an annual fee (the Sponsorship Fee) during each Contract Year of the Term. The Sponsorship Fee shall be four­million U.S. Dollars (USD $4,000,000.00) during each Contract Year.

(b) Deposit. Sponsor shall make a non-refundable deposit upon execution of this Agreement of five-hundred-thousand U.S. dollars (USD $500,000.00) (the Deposit), which shall be applied against the Sponsorship Fee for the first Contract Year.

(c) Payment Schedule. The Sponsorship Fee shall be payable in two (2) equal semiannual installments per year on or before March 1 and September 1 of each Contract Year of the Term; with the first installment due on March 1, 2014, unless Forty Niners SC notifies Sponsor that the Stadium will not open in 2014.

(d) Taxes. The Sponsor Fee is net of any commissions. Sponsor shall be liable for all applicable taxes or charges, other than taxes or charges based solely on Forty Niners SC's net income.

(e) Cost of Materials. Unless otherwise agreed in writing, Sponsor shall be solely responsible for all costs and expenses incurred producing (including, without limitation, design, production and installation) marketing materials, signage, and/or branding or entitlement, if any

4





Confidential Treatment Requested. Confidential portions of this document have been redacted and have been separately filed with the Commission.

*** Confidential material redacted and filed separately with the Commission.

(e.g., advertising copy, fixed signage, build-out of entitled club space, etc.), used in connection with the Agreement. In the event Sponsor terminates the Agreement prior to expiration, Sponsor shall pay for the removal of its signage from the Stadium.

(f) Interest on Late Payments. Any payment required to be made by Sponsor hereunder that is not paid within fourteen (14) days from the date such payment becomes due and owing shall bear interest at an annual rate of twelve percent (12%) per annum or, if lower, the maximum allowed by law from the due date to the date payment is actually made. The right of Forty Niners SC to receive interest under this Section 5(f) shall be in addition to all other rights it may have as a result of Sponsor's failure to make payments when due.

(g) Business Back. Over the course of the Term, Forty Niners SC shall purchase, at retail (measured by the average price sold to other customers), and subject to the terms of such future purchase agreements, *** of Sponsor's products, services, and support.

6. Termination.

(a) Default. If either Party defaults in the performance of, or compliance with, any term or condition of this Agreement, the other Party may terminate this Agreement by written notice. Termination of this Agreement shall be effective thirty (30) days from the date of receipt of such notice, unless, within thirty (30) days after receipt of such notice, the defaulting Party has corrected the default or if such default is capable of correction, has taken timely and reasonable steps to correct and will complete such correction within another thirty (30) days.

(b) Insolvency or Bankruptcy. If either Party files a petition in bankruptcy or is adjudicated a bankrupt, or if a petition in bankruptcy is filed against a Party, or if a Party becomes insolvent, makes an assignment for the benefit of its creditors or an arrangement pursuant to any bankruptcy law, or if a Party discontinues its business or if a receiver is appointed for it or its business, exclusivity under Section 4 shall terminate automatically and immediately and the other Party shall have the right to terminate this Agreement effective upon giving of notice to insolvent/bankrupt Party.

(c) Harmful Behavior. Either Party shall have the right to immediately terminate this Agreement in the event the other Party, in such Party's reasonable discretion, engages in illegal, indecent, immoral, harmful or scandalous behavior or activities that may directly or indirectly damage such Party's reputation or goodwill or violates any rules or regulations of Team or the National Football League or if this would otherwise violate League policy or directive.

(d) Stadium Naming. Sponsor shall have the right to immediately terminate this Agreement as set forth in Section 4(b) above.

(e) Discontinuance of Use of Marks. Upon expiration or termination of this Agreement, Sponsor shall immediately cease any new uses of all Team Marks, as well as any statements of association with Forty Niners SC, the Team and the Stadium. Sponsor acknowledges that its failure to cease the use of Team Marks at the termination or expiration of the Agreement will result in immediate and irreparable harm to Team, Forty Niners SC and the

5





Confidential Treatment Requested. Confidential portions of this document have been redacted and have been separately filed with the Commission.

SCSA and to the rights of any subsequent sponsor. Sponsor agrees that in the event of such failure to cease such use, Team, Forty Niners SC, and SCSA shall be entitled to equitable relief by way of temporary and permanent injunctions and such other and further relief as any court with jurisdiction may deem just and proper. Upon expiration or termination of this Agreement, Forty Niners SC and the Team shall immediately cease any new uses of all Sponsor Marks.

(f) Termination Is Without Prejudice to Terminating Party's Rights. Any termination of this Agreement pursuant to this Section 6 shall be without prejudice to the terminating Party's rights and remedies available at law or equity.

7. Opening of Stadium.

(a) Scheduled Opening Date. Sponsor acknowledges that the opening of the Stadium is scheduled for August 31, 2014 (the Scheduled Opening Date). During the 2014 NFL season, Team expects to play all home pre­season games at the existing facility and not in the Stadium. Sponsor further acknowledges that, due to the complexity of constructing the Stadium, the possibility exists that the opening of the Stadium could occur after the Scheduled Opening Date. In the event that the opening of the Stadium occurs after the Scheduled Opening Date, then Sponsor agrees that its sole remedies shall be as set forth in this Section 7.

(b) Four Regular Season Home Games or Fewer. In the event that the opening of the Stadium causes the first four or fewer regular 2014 season home games to be played outside of the Stadium, then there shall be no adjustment to the benefits provided as part of the Team Sponsorship Rights and/or the Stadium Sponsorship Rights. Team acknowledges and agrees that Sponsor shall still be entitled to receive all benefits provided under the Team Sponsorship Rights for all such games played outside the Stadium.

(c) Greater than Four Regular Season Home Games. In the event that the Stadium opens in 2014 but four or more regular 2014 season games are played outside of the Stadium, then (i) Sponsor shall be entitled to receive all benefits provided under the Sponsorship Rights for all such games played outside the Stadium and (ii) Sponsor shall be entitled to receive make good benefits for the value of benefits to be provided as part of the Sponsorship Rights that are not provided (the Lost Sponsorship Benefits). The Parties shall meet to determine make good benefits to be provided to compensate for Lost Sponsorship Benefits. In the event that the Parties are unable to agree on the make good benefits to be provided, then the make good benefits shall be determined under the arbitration process set forth in Section 12.

(d) Stadium Opens for the 2015 or 2016 Season. In the event that the Stadium does not open during the 2014 season, then, pursuant to Section 2, the first Contract Year will not commence until the year in which the Stadium is anticipated to open.

(e) Stadium Does Not Open. In the event that the Stadium does not open within two years of the Scheduled Opening Date, then the Sponsorship Fee shall thereafter be reduced to an amount equal to the value of the Team Sponsorship Rights only. The Parties shall negotiate in good faith to determine the value of the Team Sponsorship Rights alone. If they are unable to

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reach an agreement on this issue, then the dispute shall be resolved under the arbitration process set forth in Section 12.

8. Intellectual Property.

(a) Ownership of Marks. Nothing herein contained shall be construed as an assignment or grant to Sponsor of any right, title or interest in or to the Team Marks, or in or to any copyright, design patent or trademark thereto, beyond the grant of the licensing rights on the terms herein specified. Sponsor hereby agrees that its every use of Team Marks shall inure to the benefit of Team Companies and that Sponsor shall not at any time acquire any rights in Team Marks by virtue of any use it may make of such marks. Likewise, nothing herein shall be construed as an assignment or grant to Forty Niners SC of any right, title or interest in or to the Sponsor Marks, or in or to any copyright, design patent or trademark thereto, beyond the grant of the licensing rights on the terms herein specified. Forty Niners SC hereby agrees that its every use of the Sponsor Marks shall inure to the benefit of Sponsor, and Forty Niners SC shall not at any time acquire any rights in Sponsor Marks by virtue of any use Team Companies may make of such marks. Sponsor shall have no sub-license or pass-through rights. Sponsor agrees that it will not create any trademark, logo or other intellectual property that is derived from or confusingly similar with the Team Marks or that in any way indicates or implies a connection, affiliation, endorsement, sponsorship or other relationship between Sponsor, or any product or service of Sponsor, and the Team Companies, without the prior written approval of Forty Niners SC.

(b) Notification of Infringement. Sponsor shall notify Forty Niners SC of any infringement of the trademark rights or copyright in the Team Marks, and to assist in any action, legal or otherwise, necessary to protect such trademark rights or copyright, provided that all costs and expenses related to such an action shall be the sole responsibility of Forty Niners SC.

(c) Use According to Specifications. Sponsor agrees to use the Team Marks only in accordance with the Team Companies' specifications and guidelines as may be provided from time to time. Sponsor's materials shall be of high standard and superior quality and shall in no manner reflect adversely on Team Companies or the Stadium. The Team Companies agree to use the Sponsor Marks only in accordance with Sponsor's specifications and guidelines as may be provided from time to time.

(d) Approval of Use of Marks. Sponsor shall submit to the Team Companies all advertising or promotional materials related to this Agreement and involving Team Marks a minimum of ten (10) days prior to the production of such materials. Sponsor need not receive specific approval to release such advertising or promotional materials to the public. However, the Team Companies shall have the right, at any time during the ten (10) day period, to object to any advertising or promotional materials. Sponsor will not use the advertising or promotional material if the Team Companies objects to advertising or promotional materials. The Team Companies shall submit to Sponsor all materials related to this Agreement and involving Sponsor Marks a minimum of ten (10) days prior to the production of such materials. The Team Companies need not receive specific approval to release such advertising or promotional materials to the public. However, Sponsor shall have the right, at any time during the ten (10)

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day period, to object to any advertising or promotional materials. The Team Companies will not use the advertising or promotional material if Sponsor objects to advertising or promotional materials.

(e) Players and Coaches. With the exception of certain group player licensing rights made available to the Sponsor by the Team Companies pursuant to the Team's rights under the NFL Collective Bargaining Agreement, Sponsor acknowledges that this Agreement does not grant it any rights with respect to the name, likeness, signature or other attributes of any player, coach, or other employee of the Team. Sponsor shall be responsible for securing whatever rights may be required for the use of such names, likenesses, signatures or other attributes and may only do so with the prior written consent of the Team Companies. Sponsor represents that it will not exercise the rights granted in this Agreement in any manner that will imply Sponsor has obtained any such rights without separate written authorization from the, appropriate player, coach or employee.

(f) No Contests Without Approval. Unless otherwise indicated in this Agreement, Sponsor has no right to run contests, sweepstakes, or promotions in connection with Team Marks or the Agreement or for the award of invitations, tickets or other benefits acquired by Sponsor under the Agreement. In the event the Team Companies grant Sponsor the right to run a contest, sweepstakes or promotion, then Sponsor shall comply with all applicable federal, state and local laws, rules, regulations or orders applicable to any such activities and hereby indemnifies the Team Companies and SCSA from any failure to so comply.

9. Confidentiality. The Parties shall each keep confidential all provisions of this Agreement and (unless required by law or judicial process after making reasonable efforts to resist disclosure, including without limitation he requirements of any securities exchange), shall not disclose any of same to any third party (other than the NFL, the Parties' respective lenders or potential lenders, and the agents, counsel,­ and other representatives of NFL, the Parties, and such lenders) without first obtaining the prior written consent of the other Party. The provisions of this Section 9 shall survive the termination or expiration of this Agreement for any reason Warranties and Representations.

(a) By Forty Niners SC. Forty Niners SC represents and warrants to Sponsor the following:

(i) Forty Niners SC is a limited liability company in good standing under the laws of the State of Delaware and is duly authorized to transact business in the State of California, with full power and authority to enter into and fully perform its obligations under this Agreement. The execution and delivery of this Agreement on behalf of Forty Niners SC has been duly authorized, and no consent or approval of any other person or entity is required for execution of and performance by Forty Niners SC of this Agreement.

(ii) Forty Niners SC is not a party to any existing agreement regarding the sponsorship or promotion of or advertising relating to the Stadium, which other agreement would conflict with the provisions of this Agreement or otherwise impair any of the rights or other benefits Sponsor is entitled to receive hereunder.

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(iii) Forty Niners SC has not granted any rights pertaining to the subject matter of this Agreement to any party in a manner which would cause Forty Niners SC to be in default under any such agreement or which prevents Forty Niners SC from granting the rights and licenses to Sponsor under this Agreement.

(iv) The execution, delivery and performance of this Agreement and the transactions contemplated hereby (a) are within the authority of the Team Companies, and (b) do not conflict with or result in any breach or contravention of any provision of applicable law or the constitution, bylaws or other requirements of the NFL.

(v) There are no actions, suits, proceedings or investigations of any kind ending or threatened against the Team Companies with respect to the transactions contemplated hereby.

(vi) The Team Companies own or otherwise have sufficient rights in and to the Team Marks to grant the rights and licenses granted herein.

(b) By Sponsor. Sponsor represents and warrants to Forty Niners SC the following:

(i) Sponsor is a corporation in good standing under the laws of the State of Delaware and is duly authorized to transact business in the State of California with full power and authority to enter into and fully perform its obligations under this Agreement. The execution and delivery of this Agreement on behalf of Sponsor has been duly authorized by Sponsor and, no consent or approval of any other person or entity is required for execution of and performance by Sponsor of this Agreement.

(ii) Neither this Agreement nor anything required to be done hereunder by Sponsor violates any corporate charter, contract, or other document to which Sponsor is a party or by which it is otherwise bound.

(iii) Sponsor has not granted any rights pertaining to the subject matter of this Agreement to any party in a manner which would cause Sponsor to be in default under any such agreement or which prevents Sponsor from entering into this Agreement.

(iv) The execution, delivery and performance of this Agreement and the transactions contemplated hereby (a) are within the authority of Sponsor, and (b) do not conflict with or result in any breach or contravention of any provision of applicable law.

(v) There are no actions, suits, proceedings or investigations of any kind ending or threatened against Sponsor with respect to the transactions contemplated hereby.

(vi) Sponsor is the sole owner of all right, title and interest in and to the Sponsor Marks.

10. Indemnification and Insurance.





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(a) Indemnification. Sponsor hereby agrees to and does (a) waive any and all suits, actions, claims, losses, demands, damages, liabilities, costs and reasonable expenses of every kind (including consequential, incidental or punitive damages, or lost profits), including court costs and reasonable attorneys' fees (collectively, Claims) Sponsor may have now or in the future against Forty Niners SC, its Affiliates, the National Football League, SCSA and any of their respective officers, directors, employees, agents, insurers, and assigns (collectively, the Indemnitees) for damage to or destruction of Sponsor's property, excepting only claims caused by the gross negligence or willful misconduct of an Indemnitee; (b) fully compensate Forty Niners SC, the SCSA and their respective Affiliates (Indemnitees) for damage to or destruction of their tangible property caused by, resulting from, or arising out of Sponsor's negligence or willful misconduct under this Agreement; (b) defend, indemnify, protect and hold the Indemnitees harmless from and against any and all claims by Sponsor's officers, directors, employees, insurers, invitees, and agents for any personal injury or death or any property damage, regardless of how caused, including claims caused in whole or in part by the act, omission or negligence of an Indemnitee, excepting with respect to any Indemnitee only claims caused by the negligence or willful misconduct of such Indemnitee, to the extent of such negligence or willful misconduct, and (c) defend, indemnify, protect and hold harmless the Indemnitees against any and all claims by third parties, including, without limitation, all costs, liabilities, judgments, expenses, damages and reasonable attorneys' fees, arising out of or in connection with (i) any breach by Sponsor of any provision of the Agreement or any representation or warranty made by it therein; (ii) the use of the Sponsor Marks displayed in any advertising materials; (iii) any negligence or willful misconduct of Sponsor, its employees, servants and agents hereunder or in respect hereto; and (iv) any event for which Sponsor is credited with sponsorship or which is controlled or directed by Sponsor or anyone with whom Sponsor has contracted to control or direct such activities. ***. Promptly after the receipt by an indemnified party of notice of any claim, such indemnified party will, if a claim with respect thereto is to be made against an indemnifying party, give such indemnifying party written notice within a reasonable period of such asserted liability or commencement of such action or proceeding. The indemnifying party shall have the right, at its option, to compromise, settle or defend, at its own expense and with its own counsel, such claim; provided, however, such right shall apply only to claims for monetary damages and not to claims for injunction or other equitable relief, and provided further that no Party shall have the right to bind the other Party under the terms of a settlement without the consent of such Party. If the indemnifying party undertakes to compromise, settle or defend any such claim, it shall promptly notify the indemnified party. The indemnified party shall cooperate reasonably with the indemnifying party and its counsel, at the sole expense of the indemnifying party, in the compromise or settlement of, or defense against, any such claim.

(b) Insurance. During the Term of this Agreement, *** shall, at no cost to the ***, maintain (or cause to be maintained) the following insurance coverage with insurers having a Best's rating of A­VIII or better: commercial general liability insurance, including coverage for bodily injury, property damage, personal and advertising injury, products/completed operations and contractual liability with a minimum amount of ten million US Dollars (USD $10,000,000.00) for each occurrence. *** shall furnish the other Party with a certificate of insurance evidencing such insurance coverage, which shall further contain a provision that the





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policy or policies evidenced thereby shall not be canceled or modified without thirty (30) days advance written notice.

(c) ***. In no event shall *** be *** or ***, even if apprised of the *** of such ***.

11. Arbitration.

(a) Disputes Subject to Arbitration. Any dispute arising under or relating to this Agreement shall be resolved exclusively by arbitration under the Commercial Arbitration Rules of the American Arbitration Association, with the venue of any such arbitration proceeding to be in Santa Clara, California or such other location as maybe agreed by the Parties.

(b) Arbitrator. The arbitrator for any dispute shall be selected according to the Commercial Arbitration Rules of the American Arbitration Association.

(c) Arbitration Award. The award rendered by the arbitrator shall be final, shall identify a winning Party, and judgment may be entered upon the award in accordance with applicable law in any court having jurisdiction thereof

(d) Expenses; Attorneys' Fees and Costs. The fees and expenses of the arbitrators shall be paid by the non-winning Party. In addition, the winning Party's reasonable attorneys' fees and costs shall be paid by the non­winning Party.

12. Miscellaneous Provisions.

(a) Relationship of Parties. Forty Niners SC and Sponsor shall at all times be independent contractors with respect to each other, and this Agreement shall not constitute either as the agent, partner, or legal representative of the other for any purpose whatsoever. From time to time during the Term, each Party will designate an individual to serve as the primary liaison of such Party for the day-to-day administration of this Agreement.

(b) Third Party Beneficiaries. This Agreement does not and is not intended to confer any rights upon any person other than the Parties, except that it is expressly agreed that Team and SCSA are intended third party beneficiaries of Section 8.

(c) Compliance. This Agreement and the rights conferred herein are subject to (i) the Constitution and Bylaws and all other rules and regulations of the NFL as they presently exist and as they may, from time to time, be amended; (ii) the terms of any existing or future contracts or agreement entered into by NFL Properties or a related entity relating to sponsorships, the telecasting or radio broadcasting of NFL games; (iii) any rule or regulation of the NFL or any agreement to which the NFL is a party which restricts the visibility of signage within the Stadium during NFL games which are televised nationally; and (iv) any and all statutes and regulations of the United States, the State of California, the County of Santa Clara or the City of Santa Clara, as may from time to time be in force.

(d) Waiver. The failure by either Party to exercise any right, power or option given to it by this Agreement, or to insist upon strict compliance with the provisions of this Agreement,

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shall not constitute a waiver of the provisions of this Agreement with respect to any other or subsequent breach thereof, nor a waiver by such Party of its rights at any time thereafter to require exact and strict compliance with all the provisions hereof. The rights or remedies under this Agreement are cumulative to any other rights or remedies which may be granted by law.

(e) Notice. All notices, requests, or offers required or permitted to be made under this Agreement shall be in writing and shall be deemed properly delivered on the earlier of actual receipt or three days after the date deposited in the U.S. Mail, by certified mail, return receipt requested, or by recognized overnight delivery service with signature required (e.g., FedEx, UPS) addressed as follows:   If to Forty Niners SC:



San Francisco 49ers Attn: Legal Affairs 4949 Centennial Blvd. Santa Clara, CA 95054

If to Sponsor:



Violin Memory, Inc. Attn: Legal 685 Clyde Ave Mountain View, CA 94043

(f) Severability. Should any provision of this Agreement be determined to be invalid for any reason, such invalidity shall not affect the validity of any other provisions, which other provisions shall remain in full force and effect as if this Agreement had been executed with the invalid provision eliminated, and it is hereby declared the intention of the Parties that they would have executed the other provisions of this Agreement without including therein any such provisions which may for any reason be hereafter determined invalid.

(g) Assignment. This Agreement and the rights granted hereunder may not be assigned, sold, transferred, pledged or exchanged by Sponsor by operation of law or otherwise without the prior written consent of Forty Niners SC, which consent shall be in Forty Niners SC's sole discretion; provided, however, that Forty Niners SC shall consent to an assignment to any entity that acquires Sponsor (or a substantial portion of Sponsor's assets) via merger, acquisition or other similar transaction so long as (i) such entity's sponsorship would not cause Forty Niners SC to breach any existing agreement, (ii) Sponsor is not in default under this Agreements, and (iii) such sponsorship shall not otherwise cause a breach under this Agreement. ***. Sponsor shall have no right to assign any right granted hereunder to use Team Marks, or any other Sponsorship Rights granted hereunder, to any third party, except as otherwise explicitly set forth herein. The rights and obligations of Forty Niners SC under this Agreement may be assigned by Forty Niners SC without the consent of Sponsor so long as the assignment shall be the assignment of Team's rights and obligations hereunder (i) as collateral security for financing arrangements, (ii) to any Affiliate or successor entity, or (iii) to any purchaser of Team's interest in its NFL franchise. The Agreement and all of the terms and provisions hereof will be binding upon and will inure to the benefit of the Parties hereto and their respective successors and permitted assigns, upon proper assignment where required.

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(h) Force Majeure. Neither Party shall be liable for failure to comply with any of the terms or conditions of this Agreement when such failure to comply has been caused by fire, war, insurrection, labor disturbances, work stoppages, terrorism, government restrictions, natural disasters, weather, or acts of God beyond the reasonable control of the Parties, provided the Party so affected gives prompt notice to the other. In the event of a suspension or any obligation by reason of this Section 13(h) which extends beyond one-hundred-and-eighty (180) days, this Agreement shall be tolled.

(i) Unavailable Elements. Due to the nature of this Agreement, the rights granted may become unavailable or become impossible to provide during the Term (each an Unavailable Element). In such event, the Parties shall mutually and reasonably agree on a different make good benefit or right that has substantially the same value as the Unavailable Element(s).

(j) Media Releases. Any media releases to be issued in connection with this Agreement must be approved by the Parties, in writing, prior to their release.

(k) Headings. The Paragraph and Section headings in this Agreement are for convenience only and shall not be used in the interpretation nor considered part of this Agreement.

(l) Survival. The provisions set forth in Sections 9, 11, and 12 shall survive the expiration or termination of this Agreement.

(m) Entire Agreement and Effect. This Agreement, including all Schedules and Exhibits, constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior agreements and understandings. All representations and negotiations relative to the matters contemplated by this Agreement are merged herein, and there are no contemporaneous understandings or agreements relating to the matters set forth herein other than those incorporated herein.

(n) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of laws provisions.

(o) Amendments/Modification. This Agreement may not be amended or modified except by written document signed by both Parties.

(p) Execution In Counterpart. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.

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IN WITNESS WHEREOF, the Patties have executed this Agreement, effective as of the Effective Date.   VIOLIN MEMORY

By:  /s/ Dixon Doll Jr.

 Name: Dixon Doll Jr.

 Title:  COO/Director

FORTY NINERS SC STADIUM COMPANY LLC

By:  /s/ Gideon Yu

 Name: Gideon Yu

 Title:  President





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SCHEDULE 1

SPONSORSHIP RIGHTS

During each Contract Year:

1. Designation. Sponsor will be permitted to use the designation of The Official Data Storage and Video Surveillance Provider of the San Francisco 49ers.

2. Signage. Design, production and installation of all signage or other displays or branding shall be subject to the mutual agreement of the Parties, and shall be paid for by Sponsor, as set forth in Section 5(e) of this Agreement.

(a) Branded Areas. Sponsor shall receive exclusive branding and entitlement at the Stadium at (i) a ticketed entryway for the suite tower guests (currently referred to as Suite Tower Gate F); (ii) an open communal space in front of the suite tower (currently referred to as the Suite Tower Plaza); (iii) first floor welcome lobby of suite tower and individual suite corridors (currently referred to as the Suite Tower Atrium); and (iv) an on­site meeting space (currently referred to as the Executive Briefing Center) located adjacent to the suite described below and Forty Niners SC will provide a *** credit towards buildout of the Executive Briefing Center.

(b) Exterior Stadium Signage. Sponsor shall be permitted to display outside the stadium a three-dimensional metal lettered sign with a translucent face, internally illuminated by LED (i) in a *** space on the face of a suite tower (the West Suite Tower Banner Sign) with the words Violin Memory Tower or another mutually agreed upon name; and (ii) in a *** space over a gate entryway (the West Gate Entry Sign) with the words Violin Memory Plaza or another mutually agreed upon name.

(c) Interior Stadium Signage. Sponsor shall be permitted to display in Stadium (i) a prominent digital rotational sign (one of ten founding partners), as determined by Forty Niners SC, located above each of the (a) north endzone (the North Scoreboard Rotator) and (b) south endzone (the South Scoreboard Rotator); and (ii) a bold, channel­cut, high­contrast panel (one of ten founding partners) located between the 40­yard lines on the Stadium's west side (the Suite Tower Fixed Bowl Signage).

(d) Digital Signage. Sponsor shall receive *** thirty-second (:30) advertisements on the Stadium 360-degree LED ribbon in Stadium at each Forty Niners home game in the Stadium. Sponsor shall also receive (i) advertising in a mutually-determined number of thirty-second (:30) units and (ii) one (1) mutually-determined co-branded feature, played on a minimum of *** high-definition monitors located in the Stadium at each Forty Niners home game.

3. Gameday Activation.

(a) Display Booth. Sponsor shall receive booth space for an interactive showcase in an area for pre-game fan activity (currently referred to as the Faithful Mile) at each home game.





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(b) In-Game Fan Promotion. Sponsor and Forty Niners SC shall agree on a presenting sponsorship of a promotion for each home game each Contract Year (by way of example only, early fan of the game receives a coupon for food and beverage and feature them on the scoreboard).

(c) In-Game Scoreboard Feature. Sponsor and Forty Niners SC shall agree on a presenting sponsorship of a fan-engagement or football action scoreboard feature (by way of example only, instant replays or messages to make noise) for each home game.

(d) Presenting Sponsorship of Regular Season Home Game. Sponsor shall be named the presenting sponsor of a regular season home game, and such home game shall be given a similar theme or be located in a similar part of the calendar each Contract Year (by way of example only, Veteran's Day).

4. Media. The following media assets shall he provided, subject to annual review by the Parties, based on then-existing media and Sponsor needs:

(a) Television.

(i) *** shall be played during all team-controlled television broadcast of Forty Niners preseason games.

(ii) *** shall be played in each Total Access episode per season, including during playoffs and re-airs. There shall be a minimum of twenty (20) episodes.

(iii) *** shall be played in each Postgame Live (or similar postgame show) per season, including during playoffs and re-airs. There shall be a minimum of ***.

(iv) *** shall be played in each Press Pass or similar television show episode per season, including re­airs. There shall be a minimum of ***.

(b) Radio. The following Sponsor commercials shall be played on Team's preseason and regular season radio programming:

(i) *** on 49ers Insider or similar shoulder programming;

(ii) *** on pre-game radio broadcast;

(iii) *** on game radio broadcast;

(iv) *** on game radio broadcast ;

(v) *** shall be entitled with Sponsor's name (by way of example only, game time and temperature, scoring summary, etc.);

(vi) *** on local station and affiliate network; and





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(vii) *** shall be played in each game broadcast on the Team's Spanish radio network.

(c) Print. Sponsor shall receive:

(i) *** in each issue of the Gameday magazine (or similar program), a minimum of ten such programs per season, including playoffs;

(ii) *** in the annual Forty Niner Yearbook;

(iii) *** in the season ticket holder guide/handbook; and

(iv) Sponsor's logo will appear on the front of the game ticket associated with the aforementioned presenting sponsorship of one (1) regular season home game.

(d) Online and Social Media. Sponsor and Forty Niners SC shall develop each year a package of advertising and sponsored content on the Team's website, emails and social media (by way of example, Twitter, Facebook, and/or YouTube).

5. Hospitality.

(a) Luxury Suite. Subject to execution of the standard executive suite license agreement with Forty Niners SC ( Suite License Agreement), Sponsor will receive admission tickets to *** located in the suite tower on the Stadium's west side with access to Champions and Broadcast clubs for Forty Niners preseason and regular season home games played at the Stadium with VIP parking passes and a *** season-long food and beverage credit. Sponsor shall have the opportunity to purchase the suite for the postseason at prevailing prices, as available.

(b) 49er Home Games. Sponsor shall receive the following seating package for Forty Niners preseason and regular season home games played at the Stadium. Sponsor shall have the opportunity to purchase the same seating package for the postseason at prevailing prices, as available:

(i) *** with access to the West Legacy Club;

(ii) *** on the 100 level with access to the Champions and Broadcast clubs;

(iii) *** on the 200 level with access to the Loft club;

(c) Sponsor Trips (Pro Bowl, Road Game). Forty Niners SC shall include *** on a road game trip (particular game to be mutually agreed upon on an annual basis) or a similar event, as available.

(c) Super Bowl. Forty Niners SC shall include ***. In the event that the Team is a participant in the Super Bowl, Sponsor shall be allowed to bring ***. Forty Niners SC shall make reasonable efforts to make available additional Super Bowl tickets for purchase, based on







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availability, solely for the use, enjoyment and entertainment of Sponsor and its guests. Sponsor agrees not to solicit or accept any direct or indirect payment or income from any person or entity for the use of the tickets.

(d) Stadium Events. Forty Niners SC shall make commercially reasonable efforts to make tickets available for purchase as requested to non- NFL events at Stadium.

6. Additional Events and Marketing.

(a) Database Marketing and Business to Business Opportunities. Forty Niners SC shall provide on annual basis a list of team clients, including season ticket holders, suite holders and fans, and shall permit Sponsor to direct market to such list(s) ***.

(b) Corporate Stadium Events. Right to host at least *** at the Team's training facility and *** at the Stadium (by way of example only, conferences, holiday parties, etc.) with a mutually determined food and beverage credit, staffing credits (for planning, execution and security) and a gift for guests, with such credits dependent on the number of events held.

(c) Team Marketing Events. Sponsor shall receive VIP invitations to marketing events throughout the year, including, annual Draft party and training camp. In addition, Sponsor shall receive a foursome invitation to an annual golf event or equivalent sponsor appreciation event. Further, Sponsor shall have the opportunity to utilize a display booth at the Draft party, Fan Fest and at one day of training camp, or equivalent events.

(d) Appearances.

(i) Head Coach Appearance. Forty Niners SC shall schedule *** at a time that is reasonably convenient for the Head Coach.

(ii) Current Player Appearances. Forty Niners SC shall assist Sponsor in securing ***. Sponsors shall pay active players directly for such appearances.

(iii) Alumni Player Appearances. Forty Niners SC shall *** alumni player appearances per year for Sponsor.

(iv) Cheerleader Appearances. Forty Niners SC shall schedule *** Gold Rush cheerleading appearances upon reasonable, advance request for Sponsor events.

(v) Mascot Appearances. Forty Niners SC shall schedule *** Team mascot appearances upon reasonable, advance request for Sponsor events.

(vi) Niner Noise Appearances. Forty Niners SC shall schedule *** Niner Noise appearances upon reasonable, advance request for Sponsor events.

(e) Merchandise Credit. Sponsor shall receive ***, worth, measured at retail price, of San Francisco 49ers merchandise upon request. Sponsor may send requests for any

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merchandise available on shop49ers.com or any successor team-affiliated retailer) to Forty Niners SC for fulfillment.

(f) Autographed Memorabilia. Sponsor shall receive ***. Such autographs shall be signed by players who are members of the Team's active roster and Forty Niners SC shall make reasonable efforts to accommodate Sponsor's requests for specific players.

7. Community Relations. Sponsor will receive a presenting or integrative sponsorship of *** community program (by way of example only, 49ers Academy, Habitat for Humanity build, etc.); *** foundation event (by way of example only, Pasta Bowl, Winter Fest), and *** youth football event (by way of example only, camp, awards).

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SCHEDULE 2

Team MARKS





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SCHEDULE 3

SPONSOR MARKS

[Please insert logo here.]





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SCHEDULE 4

RENDERINGS OF SPONSORSHIP RIGHTS

The attached renderings represent the Parties' current expectations of development of Sponsor's branded areas, as described in detail on Schedule 1. Sponsor acknowledges that all signage is subject to SCSA approvals and construction/engineering alterations.

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[A]:
Highlight the parts (if any) of this contract related to Third Party Beneficiary that should be reviewed by a lawyer. Details: Is there a non-contracting party who is a beneficiary to some or all of the clauses in the contract and therefore can enforce its rights against a contracting party?