SOFTWARE LICENCE AGREEMENT BY CLICKING ON THE "ACCEPT" BUTTON BELOW YOU AGREE TO THE TERMS OF THIS LICENCE WHICH WILL BIND YOU AND YOUR EMPLOYEES. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, Licensor IS NOT WILLING TO LICENSE THE PRODUCT TO YOU AND YOU MUST DISCONTINUE INSTALLATION OF THE PRODUCT NOW BY CLICKING ON THE "REJECT" BUTTON BELOW. IN THIS CASE YOU MUST RETURN THE MEDIUM ON WHICH THE PRODUCT IS STORED AND ALL ACCOMPANYING DOCUMENTATION TO LICENSOR OR THE RESELLER (AS APPROPRIATE) WITHIN TEN (10) DAYS. IF YOU DO THIS YOUR LICENCE FEE WILL BE REFUNDED. PARTIES: (1) AUTOMATED LOGIC CORPORATION DBA NLYTE SOFTWARE, a Delaware corporation having a registered office at 1150 Roberts Blvd Kennesaw, GA 30144 ("Licensor"), and (2) THE CLIENT RECITALS (A) The Client has placed an order with Licensor or an approved Licensor Reseller, ("Reseller") for the supply and licence of certain Licensed Software, and, if selected by the Client, related software maintenance and support, from Licensor. (B) In consideration of the Client agreeing to make promptly all payments due to Licensor or Reseller, whichever is appropriate, for the supply, licence and, where applicable, maintenance and support of such Licensed Software, Licensor agrees (i) to grant the Client a licence to use such Licensed Software and (ii) if selected by the Client, to provide certain maintenance and support services to the Client in relation to such Licensed Software, in each case on the terms and conditions set out in this Agreement. AGREED TERMS: 1. Definitions. To make this Agreement short and easy to understand, it uses some defined terms which are set forth in Schedule 1 attached hereto. 2. License 2.1. License Grant. Licensor grants to the Client a non-exclusive, non-sublicensable, non-transferable (except as permitted under Section 13.2) license during the Term to install and use the Licensed Software up to the Licensed Capacity for the processing of Client’s own data and internal business purposes subject to the other terms of this Agreement. To the extent that Client engages contractors to host all or any portion of its information technology systems on computers owned or controlled by such contractors, the licenses granted hereunder shall permit the Licensed Software to be installed and operated on such contractors’ computer servers provided the Licensed Software is used solely for the purpose of processing Client’s own business data and information and in accordance with the other restrictions set forth in this Agreement. 2.2. Licensed Capacity. The Licensed Capacity of the Licensed Software is set out in the invoice from the Licensor or Reseller whichever is appropriate to the Client. If Client’s use of the Licensed Software exceeds the Licensed Capacity, additional License Fees will be due to purchase the necessary additional Licensed Capacity. If the Client fails to pay such additional License Fees within 30 days of a request from Licensor to do so and if the Client continues to run Licensed Software in excess of the permitted threshold, Licensor may by notice to the Client and with immediate effect: (a) suspend the Client's license to use the Licensed Software concerned; (b) terminate the license to use the Licensed Software concerned (without terminating this Agreement as a whole); or (c) terminate this Agreement. 2.3. Further Restrictions on Use. Except as otherwise expressly permitted herein, Client shall not, and shall not permit any third party, to: (i) modify or create any derivative work of any part of the Licensed Software; (ii) rent, lease, or loan the Licensed Software; (iii) permit any third parties to use the Licensed Software; (iv) disassemble, decompile or reverse engineer the Licensed Software or otherwise attempt to gain access to the source code of the Licensed Software or permit the same except as permitted by any applicable law (and to the extent such actions are permitted by applicable law, The Client agrees that before it does so it will make a written request to Licensor for it to supply the relevant information required specifying in reasonable detail the extent and objectives of the proposed decompilation and that Licensor shall be entitled to a reasonable fee for the provision of such information); (v) sell, license, sublicense, publish, display, distribute, assign or otherwise transfer to a third party the Licensed Software, any copy thereof, or any rights thereto, in whole or in part, except to the extent expressly permitted herein; (vi) copy the Licensed Software except for installing and loading the Licensed Software into computer memory for the purpose of executing the program subject to the Licensed Capacity and except to make a reasonable number of copies solely for back-up and testing purposes; (vii) use the Licensed Software in a service bureau or software as a service capacity (e.g., to process the business data and information of other businesses for their benefit as opposed to for the Client’s benefit); (viii) remove or modify any copyright, trademark, or other proprietary notice of Licensor affixed to the media containing the Licensed Software or appearing within the Licensed Software; and/or (ix) demonstrate the Licensed Software to a third party (other than to employees, consultants, or contractors of Client) or provide any partial of full screenshots of the Licensed Software to any third party 2.4. Delivery of Software. Unless another delivery mechanism is mutually agreed, Licensor or Reseller whichever is appropriate shall make the Licensed Software available for download via the Internet through a password protected webpage by the Client promptly after the date hereof. If Client is purchasing Implementation Services (as defined below) pursuant to which Licensor shall be installing the Licensed Software, then at mutually agreed scheduled time Licensor shall on behalf of Client download the Licensed Software and install the Licensed Software on Client’s Environment. Upon notifying the Client that the Licensed Software is available for downloading in accordance with this Section 2.4, which notice shall specify the applicable password and login information and Internet address from where the Licensed Software may be downloaded, Licensor or Reseller whichever is appropriate shall be deemed to have delivered the Licensed Software for all purposes hereunder, provided that Licensor or Reseller whichever is appropriate continues to make the Licensed Software available for download until the earlier of Client’s actual downloading of the Licensed Software or one year after the date hereof. 2.5. Audits. During the term of this Agreement, Licensor may visit Client’s facilities at which the Licensed Software is stored or operated during Client’s normal business, upon at least one week's prior notice to the Client and not more than once in any twelve month period. In such event, Client shall: (a) allow Licensor to check and maintain the Licensed Software to ensure that it is functioning correctly; (b) allow Licensor to audit the Client's use of the Licensed Software in order to enable Licensor to make sure that the Client is complying with the terms of this Agreement; and (c) give full co-operation to Licensor in carrying out such checks and audits. Licensor shall use reasonable endeavors to minimize any disruption caused to the Client’s operations as a result of its visit (the Licensed Software will not be taken out of live operation as part of the audit). Licensor shall be entitled to take copies of such documents as are relevant to the visit with due consideration to local privacy laws. In the event that the visit reveals any non-compliance with the terms of the Agreement by the Client, then without prejudice to Licensor's other rights under the Agreement, those breaches will be discussed between the parties and suitable remedies put in place and any use in excess of Licensed Capacity shall be resolved in accordance with Section 2.2 above. 2.6. Materials. The Licensed Software is supplied with a number of Materials. 3. Services 3.1. Maintenance and Support Services. Licensor shall perform the software maintenance and support services described in Schedule 2 (the “Maintenance and Support Services”). 4. Acceptance 4.1. The Client will be considered to have accepted the Product on the date the Licensed Software is delivered. 5. Warranties, acknowledgement by the Client and opportunity to fix 5.1. Software Warranty. (a) Licensor warrants that for a period of 90 days from Acceptance of the Licensed Software (the "Warranty Period") the Licensed Software and Documentation provided with that Licensed Software will not contain any Material Errors. (b) The sole remedy for a breach of the warranty in this Section 5 shall be for Licensor to repair or replace the Licensed Software or, if Licensor is unable to do so, refund the License Fee paid for such non-conforming Licensed Software. 5.2. Authority. Each party warrants that it has the right to enter into this Agreement and to grant to the other the rights and licenses granted herein. 5.3. Services Warranty. Licensor warrants that the Services will be provided with reasonable care and skill; and by means of appropriately qualified and skilled personnel. The sole remedy for a breach of the warranty in this Section 5.3 shall be for Licensor to re-perform the non-conforming Services at no additional charge. 5.4. Viruses. Licensor warrants that it shall use commercially reasonable efforts to ensure that the Licensed Software will be free from viruses or other harmful code upon delivery. Client is responsible for virus scanning (using an industry-standard and up-to-date virus scanning tool or service) all Licensed Software prior to installation. 5.5. Notice of Errors. In the event of any breach of the warranties in this Section 5, the Client must tell Licensor as soon as possible and (if applicable) in any event within any relevant Warranty Period. 5.6. Disclaimer of Warranties. Except as expressly provided in this section 6, licensor does not make, and hereby disclaims, any and all other express or implied warranties with respect to the Licensed Software, the Services, or otherwise related to this Agreement or its obligations hereunder, including, but not limited to, warranties of merchantability, fitness for a particular purpose, and noninfringement. Licensor does not warrant that the software or licensed software will be uninterrupted, error-free, or completely secure. 6. Limitation of Liability 6.1. In no event shall Licensor be liable for any special, incidental, indirect, consequential or punitive damages, including but not limited to lost profits or for revenues or damages from any interruption of business, regardless of whether such party has been previously advised of the possibility of such damages. 6.2. LICENSOR'S TOTAL AGGREGATE LIABILITY TO THE CLIENT (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE, OR BASED ON ANY CLAIM FOR INDEMNITY OR CONTRIBUTION OR OTHERWISE) IN RESPECT OF EVENTS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNT PAID BY THE CLIENT TO LICENSOR UNDER THIS AGREEMENT DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE RELEVANT EVENT. 6.3. Licensor will not be liable for any failure or delay in performing its obligations under this Agreement or for any breach of this Agreement, including but not limited to of any warranty or of the Maintenance and Support Services, to the extent that the failure, delay or breach concerned arises from: (a) use of any Licensed Software other than in accordance with normal operating procedures as described in any relevant manuals or as otherwise notified to the Client by Licensor; (b) any alterations to any Licensed Software made by anyone other than Licensor or someone authorized by Licensor; (c) any problem with the computer on which any Licensed Software are installed, any equipment connected to that computer or any other software which is installed on that computer; (d) any other hardware or software being used with or in relation to any Licensed Software, unless this use has been expressly approved by Licensor; (e) failure to implement any previous patches or error corrections of or relating to any Licensed Software provided by Licensor to Client; or (f) failure to follow any reasonable instructions given previously by Licensor. In the event that any investigation of an apparent problem carried out by Licensor at the Client's request uncovers any defect or other problem with or in relation to a Licensed Software that is subject to this Section 6.3, the costs of carrying out the investigation shall be payable by the Client (calculated on the basis of the time reasonably spent by Licensor in carrying out the investigation chargeable at Standard Fee Rates and (if appropriate) for travel, accommodation, computer resources and other out-of-pocket expenses properly and reasonably incurred by Licensor). 6.4. Subject to Section 5.5, the Client must notify Licensor of any breach of this Agreement or any other alleged wrongful act or omission by Licensor within 10 days of the earlier of: (a) the date on which the Client first became aware of the facts giving rise to the breach or wrongful act or omission in question; or (b) the date on which the Client ought reasonably have been aware of the facts giving rise to the breach or wrongful act or omission in question (for example, if the facts would have been apparent had the Client carried out testing that it was supposed to carry out under this Agreement). Licensor will not be liable for any claim that is not notified to it by the Client in accordance with this Section 6.4. 7. Confidentiality and data protection 7.1. Confidential information will include information which is either marked as being confidential or which, due to the nature of the information or the circumstances under which it was disclosed, ought reasonably to be treated as confidential information of the party disclosing it. All non-public information regarding the Licensed Software and the content of the Documentation will be treated as the confidential information of Licensor. The terms (but not the existence) of this Agreement will be treated as the confidential information of both parties. 7.2. The party receiving any of the other's confidential information must not: (a) use the information except to the extent necessary to enable it to perform its obligations or exercise its rights under this Agreement; or (b) disclose the information to any third party except to the extent expressly allowed by this Agreement. 7.3. The provisions of this Section 7 shall survive the termination of this Agreement but shall not apply to any information that: (a) is already in the public domain or enters it other than as a result of a breach of this Agreement; (b) is in the possession of the recipient party other than as a result of disclosure by the other party; (c) is trivial or obvious; (d) lawfully comes into the possession of the recipient party from a third party without the imposition of any duty of confidentiality; or (e) is required to be disclosed as a matter of law. 7.4. Each party shall be entitled to refer to the existence of this Agreement and the identity of the other party for the purpose of a press announcement. 8. Intellectual Property Rights 8.1. Ownership. Licensor and its licensors own and shall retain all proprietary rights, including any and all patent, copyright, trade secret, trademark and other intellectual property rights, in and to the Licensed Software delivered to Client under this Agreement. All rights to the Licensed Software not expressly licensed to Client in this Agreement are reserved and retained by Licensor. Client acknowledges that the license granted under this Agreement does not provide it with title to or ownership of the Licensed Software, but only a right of limited use under the terms and conditions of this Agreement. Client shall keep the Licensed Software free and clear of all claims, liens and encumbrances. Except for the rights expressly granted herein, no other rights are granted to Client with respect to the Licensed Software and all rights, title and interest in the Licensed Software shall at all times remain the property of Licensor or its licensors. Client shall have no rights to the source code for the Licensed Software and Client agrees that, except to the extent otherwise required by law, only Licensor shall have the right to maintain, enhance, or otherwise modify the Licensed Software. 8.2. Proprietary Markings. Licensor may affix from time to time such Licensor copyright, trademark, patent, confidentiality, and/or other notices, marks or legends on Licensed Software or a portion thereof. Client shall not remove, erase or modify any such notices, marks or legends appearing on or as part of such Licensed Software or any portion thereof. 8.3. Documentation. Licensor will provide the Documentation in English. The Client is allowed to translate the Documentation into any other language in order to support the Client's use of the Licensed Software. The Client shall be solely responsible (as between the Client and Licensor) for the accuracy of any such translation and shall indemnify Licensor against any claim (whether made by the Client or otherwise) arising from the translated version of the Documentation. The Client must carry out any such translation itself and may not sub-license this right unless Licensor agrees otherwise (in which case it may impose reasonable conditions on such consent, for example that the sub-licensee enters an agreement direct with Licensor to protect the confidentiality of the Documentation). 9. Indemnification 9.1. Indemnification of Client by Licensor. Licensor shall defend, indemnify and hold harmless the Client and its officers, directors and employees from and against any and all any damages, penalties, judgments and reasonable related costs and expenses, including but not limited to reasonable legal fees and expenses, (“Damages”) arising out of any third party action, claim, suit, proceeding, or allegation (each a “Claim”) of patent, copyright, trade secret, trade mark or any other intellectual property right infringement or misappropriation due to Client’s use of the Licensed Software as contemplated by the Documentation and in accordance with the terms of this Agreement, except to the extent such infringement or misappropriation is due to (i) any modifications made to the Licensed Software by Client or any third party and/or (ii) Client’s use of the Licensed Software in combination with other software, works or services not supplied by Licensor and not required by the Documentation. Should the Licensed Software become, or in Licensor’s opinion, be likely to become the subject of a claim or an injunction preventing their use as contemplated herein, Licensor shall either, in its discretion, (1) procure for Client the right to continue, as applicable, using such Licensed Software, (2) replace or modify the Licensed Software so that they become non-infringing (provided that such replacement or modification operates to a standard similar in all material respects to the Licensed Software concerned as it was prior to such replacement or modification), or, (3) if Licensor determines, in its sole discretion, that (1) and (2) are not commercially practical for Licensor, then Client shall return the Licensed Software for a refund of license fees paid depreciated on a three (3) year straight line basis from the date of Acceptance of such Licensed Software and any licenses granted under Section 2 shall terminate without further liability to Licensor. 9.2. Indemnification of Licensor by Client. The Client acknowledges that Licensor is not responsible for the use that the Client makes of the Licensed Software. Accordingly, the Client shall defend, indemnify and hold harmless Licensor and its officers, directors, and employees from and against any and all Damages arising out of any Claim relating to the Client’s use of the Licensed Software, except to the extent such Claim, if made against Licensor, would be subject to indemnification under Section 9.1. 9.3. Indemnification Procedures. If either party intends to claim indemnification under Section 9.1 or Section 9.2 with respect to Damages arising from a third party action, claim, suit, or proceeding (each a “Claim”) (for itself or for another permitted indemnitee), then such party (the “Indemnified Party”) shall promptly notify the other party (the “Indemnifying Party”) of such Claim promptly the Indemnified Party or indemnitee is aware thereof, and the Indemnifying Party shall assume the defense of such Claim with counsel of the Indemnifying Party’s choice. The indemnity agreement in this Section 9 shall not apply to amounts paid in settlement of any claim, loss, damage or expense if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld or delayed unreasonably. The failure of the Indemnified Party to deliver notice to the Indemnifying Party within a reasonable time after the Indemnified Party or indemnitee becomes aware of any such matter, if prejudicial to the Indemnifying Party’s ability to defend such action, shall relieve the Indemnifying Party of any liability to the Indemnified Party or any indemnitee under this Section 9. The Indemnified Party and all indemnitees shall cooperate fully with the Indemnifying Party and its legal representatives in the investigation of any matter covered by this indemnification. This Section 9 states the entire liability of Licensor with respect to infringement of third party intellectual property rights by the Licensed Software or any part thereof or by their operation. 10. Fees and payments 10.1. License Fees. License Fee’s will be payable within 30 days following the date of delivery of the Licensed Software. Incremental License Fees for increased Licensed Capacity shall be invoiced quarterly based on the additional Licensed Capacity recorded by the Licensed Software during the preceding three months. The quarterly invoice will be payable within 10 working days from the date of issue. 10.2. Taxes. All payments due hereunder shall be net of any applicable sales, use, and other taxes, and Client agrees to pay (or reimburse Licensor to the extent Licensor is required by law to collect and pay such taxes) any such taxes due in connection with this Agreement, excluding taxes on Licensor’s or its employees’ income, for which Licensor is solely responsible. In the event that the Licence Fees and Services are subject to sales and use tax the Client will provide to the Licensor on request one of the following, (i) a completed sales tax exemption certificate signed by an officer of the Client that indicates that the Licence Fees and Services are exempt from sales and use tax, (ii) a copy of a Direct Pay Permit form or (iii) documentation that the Client has accrued and paid sales tax on the Licence Fees and Services. Such documentation would include a copy of the state use tax return for the period in which the purchase was included, a list of the taxable purchases included in the use tax return and a copy of the check or other documentation that the amount reported as use tax was actually paid Payment of charges and expenses to Licensor must be made without any deduction. 10.3. Late Payments. Without prejudice to any other right or remedy of Licensor if any fee or other sum becoming due under this Agreement is not paid within 30 days of the due date then Licensor reserves the right to: (a) charge interest at the rate of 3% per annum above the base lending rate of Chase Manhattan Bank, New York, from the due date until payment is received, or if lower, the maximum rate allowable by law; and (b) suspend the supply of any Services or Licensed Software until payment in full is made or further written notice is given by Licensor. 11. Non-solicitation 11.1. During the Term and one year thereafter, neither party shall, without the prior party’s prior written consent, directly or indirectly, solicit for employment, offer employment to, employ or engage as an employee, consultant or advisor, any individual who is then employed, or any individual who was employed within the preceding twelve (12) months, by the other party. 11.2. If either party breaches Section 12.1, it will pay to the party that originally employed the employee concerned an amount equal to the aggregate annual salary that such party was paying such employee immediately preceding such employee’s departure. This payment shall be without prejudice to the payee's other rights under this Agreement and is in recognition of the disruption that such inducement or permission would cause to the efficient conduct of the business of the party that originally employed the employee concerned. The parties agree that such amount is a genuine pre-estimate of the minimum loss which would be caused by that disruption. 12. Term and termination 12.1. Term. This Agreement shall commence on the date the Licensed Software is delivered and will continue until the expiry of the term as set in an invoice from the Licensor or Reseller’ to the Client or terminated in accordance with this Section 12 or as otherwise specified in this Agreement (the “Term”). For purposes of clarity, expiration or non-renewal of the Maintenance and Support Services, or completion of any Implementation Services, shall not terminate this Agreement. 12.2. Termination. Each party may by written notice to the other terminate this Agreement with immediate effect if: (a) any money due to that party under this Agreement remains due and unpaid for thirty (30) days or more after that party has given notice to the non-paying party that any such amount is overdue for payment; (b) the other party is in material breach of any of the terms of this Agreement and: (i) the breach is not capable of being rectified; or (ii) the breach is capable of being rectified, but the party in breach has not rectified it within 60 days of being notified of the breach and asked to rectify it by the party not in breach; or (c) the other party suffers an Insolvency Event. 12.3. Effect of Termination. On termination of this Agreement for any reason: (a) all fees due to Licensor, up to and including the relevant date of termination, shall be paid by the Client within ten (10) days of the date of termination; and (b) Licensor shall be under no further obligation to supply any further Services or Licensed Software. (c) the rights of the Client to use the relevant Licensed Software and Documentation shall terminate; (d) within 10 days of the date of termination, the Client must erase all copies of the relevant Licensed Software and, to the extent that they are not contained on media that forms an integral part of equipment belonging to the Client, return to Licensor all copies of the relevant Licensed Software, Documentation and any other Licensed Software and shall provide Licensor with a certificate certifying that this has been done. The Client shall not be expected to return any data which Licensor does not have rights to under this Agreement or otherwise; and (e) Licensor will provide such reasonable support to the Client as may be required to ensure that Section 13.3(d) has been complied with, such support to be provided at Licensor's Standard Fee Rates. 12.4. Survival. Sections 2.3, 2.6, 5.6, 6, 7, 8.1, 8.2, 9, 10, 11, 12.3, 12.4, and 13, and any other terms that expressly survive termination, shall survive any termination of this Agreement in accordance with their terms. 13. General 13.1. U.S. Federal acquisition. This provision applies to all acquisitions of the Software and Documentation by, for, or through the U.S. Government and only to such acquisitions. By accepting delivery of the Software and/or Documentation, the U.S. Government hereby agrees that this Software and/or Documentation qualifies as commercial computer software or commercial computer software documentation as such terms are used or defined in FAR 12.212, DFARS Part 227.72, and DFARS 252.227-7014(a)(1) and (2). Accordingly, only those license rights specified in this Software License Agreement shall pertain to and govern the use, modification, reproduction, release, performance, display, and disclosure of the Software and Documentation by the U.S. Government (or other entity acquiring for or through the U.S. Government). Where any contractual terms and conditions of this Software License Agreement conflict with, or are inconsistent with, U.S. Federal Acquisition Regulation (FAR) contract clauses that apply to the U.S. Government’s purchase of this Software and/or Documentation, the FAR contract clauses shall supersede any such conflicting contractual terms and conditions. 13.2. Force majeure. Licensor will not be liable for delay or for failure to perform its obligations under this Agreement if and to the extent such delay or failure because of causes beyond its reasonable control or because of any act of God, accident to equipment or machinery; any fire, flood, hurricane, tornado, storm or other weather condition; any war, act of war, act of public enemy, terrorist act, sabotage, riot, civil disorder, act or decree of any governmental body; any failure of communications lines, transportation, light, electricity or power; any earthquake, civil disturbance, commotion, lockout, strike or other labor or industrial disturbance; or any illness, epidemic, quarantine, death or any other natural or artificial disaster, but any such circumstances shall not relieve the Client from its obligations to pay for any Licensed Software or services supplied to it prior to such circumstances occurring. If at any time it becomes clear to either party that circumstances have arisen which are likely to result in Licensor failing to perform its obligations under this Agreement or to meet any timescales set out in this Agreement or otherwise agreed in writing between the parties, then it will immediately notify the other party of this and the parties will discuss and agree on what steps can be taken to minimize or, if possible, to eliminate, the risk of this result occurring. Each party will use its reasonable endeavors to minimize and, if possible, eliminate such risk. 13.3. Assignment and sub-contracting. Neither this Agreement nor any rights under this Agreement may be assigned, sub-licensed or otherwise transferred (including by operation of law) by either party without the prior consent of the other party, such consent not to be unreasonably withheld or delayed, provided that Licensor shall be allowed to assign this Agreement to a successor to its business in connection with a merger or sale or all or substantially all of its assets. 13.4. Notice. Any notice or other communication to be given under this Agreement shall be in writing, in English, and delivered or sent by either (a) internationally recognized courier or (b) e-mail or other electronic communication to the below addresses: If to Licensor, then: 1150 Roberts Blvd Kennesaw, GA 30144 e-mail: legal@nlyte.com Notices shall be deemed served in the case of notices sent by courier, when delivered, and for notices sent by electronic communication when received at the first device hosting electronic communication services for that party which, in the absence of earlier receipt, shall be deemed to have occurred 96 hours after sending. Where this Agreement requires or refers to something being agreed between the parties, then unless this Agreement says otherwise that agreement has to be in writing in order to be effective. 13.5. Arbitration. Except for the right of any party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction or other equitable relief to preserve the status quo or prevent irreparable harm, any dispute, controversy or claim arising out of or relating to this Agreement, including any controversy or claim that arose or the facts on which is based occurred prior to or after the effective date of this Agreement, (a “Dispute”) shall be settled by binding arbitration commenced by either party in New York City, New York and in accordance with the commercial arbitration rules of the American Arbitration Association (“AAA”) (except that cross examination and discovery shall be permitted). Such arbitration shall be conducted by a single mutually agreed arbitrator, or failing agreement, each party shall appoint one arbitrator within 30 days of the other party’s request for arbitration, with a third then being promptly selected by the two arbitrators so chosen. Arbitration shall commence within 30 days after the appointment of the third arbitrator (or the single arbitrator, if only one is selected). The parties hereto agree that each party to the arbitration shall bear its own costs and expenses (including, without limitation, all attorneys’ fees and expenses, except to the extent otherwise required by applicable law) and all costs and expenses of the arbitration proceeding (such as filing fees, the arbitrator’s fees, hearing expenses, etc.) shall be borne equally by the parties hereto. The parties agree that the judgment, award or other determination of any arbitration under the AAA Rules shall be final, conclusive and binding on all of the parties hereto. Nothing in this section shall prohibit any party hereto from instituting litigation to enforce any final judgment, award or determination of the arbitration. 13.6. Governing Law; Venue. This Agreement (if and as varied and/or supplemented from time to time) shall be governed by and construed in accordance with the laws of New York, without regard to the conflicts of laws principles thereof. Other than as necessary to enforce any final judgment, award or determination, any action brought pursuant to or in connection with this Agreement shall be brought only in the state or federal courts within the State of New York and both parties submit to the personal jurisdiction, and waive any objections to venue, of such courts. 13.7. Entire Agreement. This Agreement constitutes the entire agreement between the parties about the subject matter of this Agreement and supersedes all earlier understandings and agreements between either of the parties and all earlier representations by either party about such subject matter. The parties have not entered into this Agreement in reliance upon any representation, warranty or promise and no such representation or warranty or any other term is to be implied in it whether by virtue of any usage or course of dealing or otherwise except as expressly set out in it. This Agreement may not be modified except in writing signed by a duly authorized representative of both parties. 13.8. Waiver of Compliance. Neither party shall by mere lapse of time, without giving notice or taking other action hereunder, be deemed to have waived any breach by the other party of any of the provisions of this Agreement. Further, the waiver of either party of a particular breach of this Agreement by the other shall not be construed as or constitute a continuing waiver of such breach or of other breaches of the same or other provisions of the Agreement. 13.9. Invalidity and Severability. In the event that all or any part of the terms, conditions or provisions contained in this Agreement are determined to be invalid, unlawful or unenforceable to any extent by any arbitrator or any court or tribunal of competent jurisdiction, such term, condition or provision shall be severed from the remaining terms, conditions and provisions which shall continue to be valid and enforceable to the fullest extent permitted by law. 13.10. Non-Exclusive Arrangement. Licensor is free to provide services or other supplies to any other person in relation to any matter covered by this Agreement. Nothing in this Agreement shall restrict Licensor from doing so. 13.11. Independent Parties. Nothing in this Agreement shall be construed to constitute either of the parties hereto as a partner, joint venturer, agent, representative or employee of the other party. Neither party has any authority (nor shall anything in this Agreement be treated as giving either party authority): 13.12. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. 13.13. Interpretation. In this Agreement, unless it says otherwise: (a) reference to a person includes a legal person (such as a limited company) as well as a natural person; (b) reference to "including" or "for example" in this Agreement shall be treated as being by way of example and shall not limit the general applicability of any preceding words; (c) reference to any legislation shall be to that legislation as amended, extended or re-enacted from time to time and to any subordinate provision made under that legislation; (d) references to a Schedule or Appendix shall mean a schedule or appendix to this Agreement; (e) section headings are inserted for ease of reference only and shall be given no effect in the construction of this Agreement; and (f) reference to this Agreement shall include reference to it after it has been amended, added to or replaced by a new Agreement. Any software supplied or licensed under this Agreement will not be treated as goods. SCHEDULE 1 DEFINITIONS In this Agreement the following terms shall have special meanings: Term Meaning “Asset” means an entity that represents a current or planned, physical, virtual, infrastructure or IT device within an information technology environment, including properties and relationships with other entities and assets. An asset models a device throughout its lifecycle from pre-procurement to end of life. “Datacentre Device” means any floor standing data center facility infrastructure such as power distribution devices, power panels, and uninterruptible power supplies with an active or recycled status will be counted as a Managed Rack for every 10 assets. "Documentation" The user and technical documentation for the Licensed Software delivered to Client by Licensor with the Licensed Software. "Environment" The computer environment, the description of which is set forth in the Documentation, on which the Licensed Software is intended to operate. "Helpdesk" Licensor’s helpdesk providing a central point of contact for Maintenance and Support Services. "Insolvency Event" Means, with respect to either party, any of the following: (i) makes a general assignment for the benefit of creditors, (ii) files a voluntary petition of bankruptcy, (iii) suffers or permits the appointment of a receiver for its business or assets, (iv) becomes subject to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign, which is not dismissed within sixty (60) days, or (v) has been dissolved, liquidated, or ceased doing business. "License Fee" The license fee payable for Licensed Software (including any license fee increments associated with increased Licensed Capacity usage). “Licensed Capacity” The number of Assets, Points and/or Managed Racks the Client is licensed for "Licensed Software" Any software product (including, but not limited to versions of Licensor's 'nlyte' product) to be supplied or licensed by Licensor as described in in an invoice from the Licensor or Reseller whichever is appropriate to the Client. Reference to Licensed Software includes reference to any modified or replacement version of that Licensed Software that may be supplied to the Client. "Maintenance and Support Services" The services to be supplied by Licensor under the Maintenance and Support Terms. "Maintenance and Support Fees" The maintenance and support fees payable by the Client to Licensor or the Reseller (as appropriate). "Maintenance Release" A release of a Licensed Software that contains corrections to defects existing in previous versions of the Licensed Software. “Managed Rack” means: a) any asset with an active or recycled status within the Product created from a Material; b) any standardized frame identified as a rack or cabinet, floor standing device, tape Libraries, storage Units, mainframes, or enclosure in a Mounted IT device or Datacenter Device that has an external depth equal to or greater than approximately 39 inches (greater than exactly 1000 mm) and external width equal to or greater than approximately 23 inches (greater than exactly 600 mm) with an active or recycled status within the Licensed Software: c) any large floor standing equipment with an active or recycled status, exceeding approximately 27 cubic feet in volume (exceeding exactly 0.765 cubic meters), managed as a single asset in the Licensed Software will be counted as a Managed Rack, (for example, mainframes, mini-computers, tape silos, storage devices).; and d) any Datacentre Device. “Material” These are images of materials, collected and provided by the Licensor as part of the Licensed Software. No warranty is provided by the Licensor on the correctness and suitability of those images. Materials supplied with the Licensed Software are: • Servers, floor standing, Rack mounted and blades • Network devices that can be powered • Storage Peripherals Chassis enclosures and modules "Material Error" Any defect in the Licensed Software or Documentation has a material adverse effect on its use or operation for the purpose for which it was designed or intended under this Agreement. "New Product " A New Product is Licensed Software that has never existed before. Any product with a new name is considered a "new product", even if some of its content existed in an old product. "nlyte" Licensor's proprietary data center management software known as 'nlyte'. “Points” Are any physical data points that is being polled by the Software, such as but not limited to; temperature sensor, current sensor, fan status, power strip, etc. "Product Release" A numbered substantial release to a Product Version that contains material enhancements to the Licensed Software's functionality or architecture. "Product Version" A numbered version of the Licensed Software. A Product Version may contain multiple Product Releases. "Remote Login" A way for Licensor to log in to the system on which Licensed Software are being used via dial-up connection or Internet VPN. "Standard Fee Rates" Licensor’s current standard rates subsisting at the time the relevant Services are provided unless different fee rates relevant to the Services concerned are expressly specified in this Agreement, in which case those fee rates shall be the Standard Fee Rates for the purposes of the Services to which this Agreement says they are to relate. "Support Procedures" A procedures manual that will be provided to the Client and that describes the Helpdesk processes to be used by the Client. “Update” A software patch or a corrected or updated version of a Licensed Software product. The term “Update” excludes Product Versions. "Validate" Defined in Section 6(b) of the Maintenance and Support Terms "Warranty Period" The warranty period is defined in Section 6.1 of the Agreement. "Workaround" A procedure or solution intended as a temporary measure to reduce the effect of a defect in Licensed Software pending a resolution of the defect. "Working Days" Monday to Friday (inclusive), excluding national holidays in the United States "Working Hours" 8.00 a.m. to 5.00 p.m. (ET) on Working Days. SCHEDULE 2 MAINTENANCE AND SUPPORT TERMS 1. General 1.1 The terms in this Schedule 2 apply to the supply of services in relation to the maintenance and support of Licensed Software. They apply in addition to the terms in the main body of the Agreement. 2. Maintenance and Support Services 2.1 In relation to each Licensed Software product, Licensor will provide Maintenance and Support Services in accordance with these Maintenance and Support Terms and the other terms of this Agreement. 2.2 The Maintenance and Support Services will start on the date of the first installation of the Licensed Software (or, if Licensor is not being engaged to perform installation, then upon delivery of the Licensed Software) and only be provided for those periods where the Client has paid the Maintenance and Support Fees. 3. Releases 3.1 Licensor may produce Updates Product Releases and Product Versions from time to time and such Updates Product Releases and Product Versions will be supplied to the Client free of charge. 3.2 New Products will be made from time to time by Licensor and the Client will be offered the opportunity to purchase New Products. 3.3 Maintenance and Support Services will only be provided in respect of: (a) the version of the latest Product Release (i.e., as updated with all Updates released by Licensor to the Client); and (b) the one immediately before that, up to the end of a period of eighteen months from the date of first availability of the latest Product Release. 4. Provision of Maintenance and Support Services 4.1 All requests by the Client for Maintenance and Support Services must be routed via the Helpdesk unless otherwise agreed in writing by Licensor. 4.2 Maintenance and Support Services will comprise the following: (a) Licensor will provide the Helpdesk. This will be available via email and telephone with requests for assistance to be submitted in a manner agreed with Licensor; (b) Licensor will use its reasonable endeavours to correct defects in any relevant Licensed Software in accordance with the provisions of these Maintenance and Support Terms, including but not limited to Sections 6 and 7. 4.3 The Client may only request support via one of its designated representatives who shall be the Client's primary or secondary administrators for the Licensed Software. These must be named and will be limited to 5 people. The Client may change its designated representatives on 48 hours' notice to Licensor. 5. Support call categories 5.1 Severity level for support calls: (a) Severity Code 1: The Client’s production use of the Licensed Software is stopped or so severely impacted that the Client cannot reasonably continue work. The goal in this case is to fix the problem or to provide a Workaround as quickly as possible so that the essential functionality of the Licensed Software is available to the Client. The problem would be either resolved or (on provision of a Workaround) reduced to Severity Code 2 level. (b) Severity Code 2: The Client’s production use of the Licensed Software key functional aspects is severely impaired but operationally critical processing is not prevented. The goal in this case is to remedy the problem or provide a Workaround. (c) Severity Code 3: The Client’s use of a function within the Licensed Software is impaired but operationally critical processing is not prevented. The goal in this case is to resolve the problem or to incorporate a correction into a future Product Release. (d) Enhancement Request: A feature or suggestion identified as an improvement to the existing functionality of the Licensed Software. Consideration but no commitment will be given to these requests. 5.2 The severity level to be assigned to a particular problem will be decided by Licensor, acting reasonably and after consultation with the Client. 6. Response times 6.1 Target response times for problems logged with the Helpdesk are as follows: (a) Acknowledgement: Licensor will use its reasonable endeavors to acknowledge receipt of a Severity Code 1 or Severity Code 2 problem within 4 Working Hours of the problem being logged with the Helpdesk. A Severity Code 3 problem will be acknowledged within 3 Working Days. An Enhancement Request will be acknowledged within 5 Working Days. (b) Validation: Licensor will use its reasonable endeavors to validate a Severity Code 1 or Severity Code 2 problem within 24 hours from its acknowledgement of the problem. Licensor will use its reasonable endeavors to validate a Severity Code 3 problem within 5 Working Days. "Validate" in this context means to investigate the problem so as to identify its cause (but not necessarily to provide a resolution). 7. Remedial action 7.1 Once a problem has been validated, target resolution times will be as follows: (a) Severity Code 1: Licensor will use reasonable endeavors to implement a Workaround within 24 hours of Validation of the problem. If after 24 hours no Workaround is available, Licensor shall assign staff to work continuously during Working Hours on the problem until a Workaround is found or the problem is fixed. (b) Severity Code 2: Licensor will use reasonable endeavors to implement a Workaround within 48 hours of Validation of the problem. If after 48 hours no Workaround is available to the Client, Licensor shall assign staff to work continuously during Working Hours on the problem until a Workaround is found or the problem is fixed. (c) Severity Code 3: Licensor will use reasonable endeavors to implement a Workaround within 20 Working Days and may provide a fix in the next Releases. 7.2 In order to resolve a Client’s problem, remote access must be provided. In the event resolution cannot be provided through remote access, it may be necessary to carry out the remedial action at the Clients premises. 8. The Client’s responsibilities 8.1 The Client shall: (a) follow the Support Procedures when using the Helpdesk; (b) make sure that the Licensed Software are correctly configured upon installation and are tested to confirm they have been configured correctly and adhere to the minimum system requirements as specified by Licensor.; (c) maintain properly trained staff who are qualified to use the Licensed Software; and (d) comply with all of its other obligations under this Agreement in relation to the Licensed Software and to providing assistance to Licensor. 8.2 The following matters are not covered by the Maintenance and Support Fees and are chargeable separately: (a) installation of Updates, Product Releases, Product Versions and New Products; (b) the provision of services outside the scope of this Agreement; (c) reasonable expenses and costs incurred (if any) in the installation of Updates, Product Releases, New Products and Product Versions (although wherever possible these will be agreed in advance in writing between the parties); (d) reasonable expenses and costs incurred (if any) in the investigation and/or correction of errors in the Products where Licensor is required to work at the Location (although wherever possible these will be agreed in advance in writing between the parties); and (e) reasonable expenses and costs incurred in the investigation and/or correction of errors in the Products that are not the responsibility of Licensor. 8.3 On the anniversary of the Initial Period, and thereafter on the anniversary of the commencement of a Renewal Period, Licensor may increase the Maintenance and Support Fee by no more than the equivalent CPI year-on-year percentage. “CPI” means the Consumer Price Index for All Urban Consumers (CPI-U): Not Seasonally adjusted U.S. City Average – All Items, published by the U.S. Department of Labor – Bureau of Labor Statistics and available at www.bls.gov. 8.4 Either party may terminate the Maintenance and Support Services, without affecting this Agreement as a whole, by giving the other party 180 days written notice after the end of the first Renewal Period. 8.5 In the event that the Client terminates Maintenance and Support Services during an Interim or Renewal Period, the Licensor will not be required to refund any unused or prepaid Maintenance and Support Fees. 8.6 Either party may terminate the Maintenance and Support Services without terminating this Agreement as a whole if the other party is in material breach of any of the terms of this Agreement in relation to the Maintenance and Support Services concerned and: (a) the breach is not capable of being rectified; or (b) the breach is capable of being rectified, but the party in breach has not rectified it within 30 days of being notified of the breach and asked to rectify it by the party not in breach. 8.7 Where the Client chooses to terminate Maintenance and Support Services but later decides to reinstate provision of those Services from Licensor, the Client will be required to pay past Maintenance and Support Fees from the date the Maintenance and Support Services terminated. . .