Varigence, Inc. End User Software License Agreement NOTICE: THIS AGREEMENT CONTAINS IMPORTANT TERMS AND CONDITIONS THAT REQUIRE YOUR COMPLIANCE. CAREFULLY READ THE ENTIRE DOCUMENT. This Agreement describes the license terms between Varigence, Inc. (“Varigence”) and you (referred to in this Agreement alternately as “you”, and “Customer”) for use of the accompanying software (“Software”) on a trial, permanent or subscription basis. THIS AGREEMENT IS SUBJECT TO ARBITRATION. 1. LICENSE GRANT. a) TRIAL LICENSE. If the Software offers a trial option, upon accepting this Agreement, Customer will be entitled to a one‐time trial license at no charge. Unless otherwise agreed, the term of each trial license will be 14 days. All of the terms and conditions of this Agreement apply with equal force to the trial license. Each trial license will expire at the end of the trial period, at which time Customer must either purchase a full license, or stop using the Software, and delete all copies of the Software and any portions of it that may have been downloaded or installed by Customer, its officers, employees, agents, representatives, or any other person that Customer allows to access the Software. Customers will not be entitled to take advantage of more than one free trial period with respect to the Software directly or through any other person or entity without the knowledge and express permission of Varigence. During the term of a Trial License, Customers will receive the same access to Updates, Support and Maintenance as they would receive under a Full License. b) FULL LICENSE. Customer may purchase or otherwise be granted by Varigence a full license for use of the Software upon the terms and conditions set forth in this Agreement. If a full license is purchased or granted, Customer will receive a license “key” consisting of a code with which to access the Software on a permanent or subscription basis. (i) Permanent License. A Permanent License entitles Customer to perpetual use of the version of the Software as it exists on the day the License commences. A Permanent License includes all revisions, improvements, upgrades, patches, enhancements, fixes, and modifications offered by Varigence (the “Updates”) at no additional charge for twelve months following the commencement of the license. A Permanent License does not include any rights to subsequent Updates, or any releases of new versions of the Software or other existing or subsequently developed software of any kind that is separate from and in addition to the Software. Varigence will have unlimited discretion to as to whether to issue a software product as an Update of the Software, as a new version of the Software, or as a new version or Update of totally separate software. (ii) Subscription License. If Customer purchases a Subscription License, Customer will pay a periodic license fee to access the Software. Each Subscription License will expire immediately upon the end of the last period for which payments have been received. A Subscription License includes free Updates, as offered by Varigence during the term of the license. A Subscription License does not give Customer any rights to releases of new versions of the Software or other existing or subsequently developed software of any kind that is separate from and in addition to the Software. Varigence will have unlimited discretion as to whether it issues a software product as an Update of the Software, as a new version of the Software, or as a new version or Update of totally separate software. c) CUSTOMER DEPLOYMENT OPTION. Customers who wish to make the Software available to their End Users on shared devices, or manage the assignment to and transfer of End User authorizations may select the customer deployment option when installing the Software (the “Customer Deployment Option”), if the Software offers such an option. The Customer Deployment Option may be elected for Permanent or Subscription Licenses. d) RESTRICTED LICENSES. Varigence offers Restricted Licenses for some Varigence Software. Restricted Licenses include but are not limited to Trial Licenses for any Software, any license for the BimlExpress Software, and any license for which Varigence is not financially compensated by the Customer. Customers using Restricted Licenses may not attempt to access or use the binaries of the Software. They may only access the Software through the user interface provided by the Software. Any attempts to access the Software using any API, any other binary interface, or via any automation or scripting technology (including but not limited to Microsoft Visual Studio automation features) is expressly PROHIBITED. 2. SCOPE OF LICENSE Every license granted under this Agreement is non‐exclusive and may not be assigned without the express written consent of Varigence. Each license commences when the Customer accepts this Agreement. a) END USERS. (i) Access. Each license granted under this Agreement includes the right to allow one individual to access and use the Software in connection with the conduct of Customer’s business operations (each such individual being referred to herein as an “End User”). The number of licenses required is based on the number of authorized End Users and not the number of End Users concurrently accessing the system. (ii) Transfer. End User status may be transferred from one individual to another only in connection with permanent changes in job descriptions and general work assignments. End User status cannot be shared or rotated or temporarily transferred between or among individuals to avoid purchasing a license for each End User. Except with the knowledge and express permission of Varigence, End User status for each license cannot be transferred more than once in any 30 day period. (iii) Registration and Acceptance. Each End User must be registered with Varigence or a Customer who has elected the Customer Deployment Option. All use of the Software is subject to the terms of this Agreement. Customer may only give access to the Software to End Users who have been fully informed of their obligations under this Agreement and have agreed to be bound by this Agreement. (iv) Joint Responsibility. Both Customer and each of its End Users will be fully liable for any violation of this Agreement by the End User. b) FRAMEWORKS AND SERVER COMPONENTS. The Software may consist, in whole or in part, of Framework or Server Components. All items received by Customer that are labeled, otherwise identified, or would be reasonably construed as part of Framework or Server Components or any brand name for such Software (such as “BimlFlex” or the “Varigence Framework”) collectively constitute the “Framework” pursuant to this Agreement. These files may include source code, binary files, documentation, support and utility files, schema descriptions, metadata definitions, backups, or any variety of other essential or optional deliverables. Such file types include, but are not limited to: • Biml Bundle (bimlb) files • Biml code (biml) files • Biml transformer (bimlt) files • Biml framework (bimlfx) files • Biml build (bimlproj) files • Mist project (mst) files • SQL script (sql) files • MDX script (mdx) files • DAX script (dax) files • Text (txt, csv, tsv, dat) files • Excel spreadsheet (xls or xlsx) files • Word document (doc or docx) files • Visio diagram (visx) files • Portable Document Format (pdf) files • PowerPoint presentation (ppt or pptx) files • HTML document (html) files • JavaScript (js) files • Cascading Style Sheet (css) files • C# and VB code files (cs and vb) files • Custom SSIS Tasks and Components • DLL Files • ASP.NET MVC (cshtml, vbhtml, edmx) files • Image files • Video files • Database backups • Zip files or other archives • Emails The Customer is permitted to use the Framework as permitted in this Agreement only if they have purchased a Permanent or Subscription license to use that Framework in their organization. If there are changes to any of the attributes of the Customer organization that require additional or different licensing, Customer must inform Varigence of the change and acquire the required licenses. Otherwise, the Customer must discontinue use of the Framework. Such changes to Customer organization attributes may include but are not limited to employee count and database object count. A license to use the Framework does not entitle the Customer to use any other Software. Customer must separately license any other Software, even Software that may be required to use the Framework. In certain instances, source code and other Intellectual Property that can be used to modify and/or build the Framework, in whole or in part, may be disclosed to Customer either as a side‐effect of using the Software or as part of intentional or accidental technical communication by Varigence. Unless otherwise stated in writing, such disclosures may be used by Licensee for reference purposes only, and modification or redistribution of such disclosures are strictly forbidden. c) AUTHORIZED COPIES. Each permanent license granted under this Agreement includes the right to install two separate copies of the Software, or access a copy of the Software on a Varigence website, provided that only one copy may be in use at any time. The Software may also be installed on shared devices that provide (i) virtualization or (ii) multiplexing capabilities that pool connections or share hardware across multiple users. Each such installation shall constitute one of the two authorized copies for each End User with access to the Software on the shared device. Remote access of the Software on any other device without copying or downloading the Software does not constitute a separate copy. d) BACKUP COPY. Each Customer may create one backup copy of the Software exclusively for use in installing the Software on other devices consistent with this Agreement or replacing another licensed copy that is destroyed or becomes unusable. The backup copy will not be counted against the Customer’s authorized number of copies if its use is limited to Software installation. e) USAGE LIMITATIONS. The Software is licensed, not sold. Customer may use the Software in combination with Customer’s other systems, but only as permitted in this Agreement. Customer may not attempt to circumvent or work around any features or technical limitations of the software. Varigence reserves all rights not expressly licensed under this Agreement. Specifically, and without limitation, Customer is not permitted to: • modify or create derivative works of the Software; • emulate, clone, re‐create, reverse engineer, decompile, disassemble or otherwise attempt to discover or replicate the binary code, source code design features, graphics, logos or any copyrighted or trademarked text or images included in the Software, or reduce any or all of the Software’s code to human readable form; • assign, transfer, rent, lease, lend, sublicense or otherwise transfer the license key, or any of Customer’s rights in the Software without the express written consent of Varigence; • publish, redistribute or resell the Software or make it available for others to copy or purchase in whole or in part; • include the Software or any of its parts or components as part of any other software, service, or product; • create any copies of the Software except as expressly permitted in this Agreement; • access application programmer interfaces that are not documented as End User accessible on Varigence’s website or in documentation accompanying the Software; • delete any claims, markings or notices of patent, trademark or copyright ownership or registrations. • use the Software in any act that is a violation of governing laws; • install or access the Software, either directly or through commands, data or instructions from or to a computer that is not part of Customer’s internal network; • make the Software accessible to the public, or to any individuals who are not authorized End Users of the Software or licensees of Framework and Server Components; • use the Software in any way that would make the number of users uncountable; • use the software for commercial or non‐commercial software hosting service; • use the software for Software as a Service (SaaS). 3. INFORMATION COLLECTION AND RECORDKEEPING. The Software is designed to track and report various information to Varigence and/or Customer’s systems related to Software installation, authorized End Users, Licensed Usage Instances and Software performance and effectiveness. Customer and End Users agree to the collection of such information, and will not do anything to interrupt or interfere with it. Customer will register each licensed installation of a Software copy, and each authorized End User with Varigence, unless Customer elected the Customer Deployment Option when installing the Software. Customers who elect the Customer Deployment Option must assume responsibility for tracking each licensed installation of a Software copy and each authorized End User. Customer agrees to keep such records for at least one calendar year, and provide them to Varigence upon request in order to verify license compliance and Software improvement. Customer will only be required to provide data for one such request every 30 days. If Customer does not elect the Customer Deployment Option, the same information must be provided directly to Varigence. 4. UPDATES, SUPPORT AND MAINTENANCE. a) AUTHORIZED UPDATES. Varigence is the only authorized distributor of Updates. From time to time, Varigence may decide to issue Updates to correct deficiencies or errors in the Software that are reported to Varigence. Varigence may not correct every deficiency or error that comes to its attention, and Varigence will have no obligation to issue any Updates. At its discretion, Varigence may choose to include additional features in Updates. These additional features may be subject to additional terms which Customer may be required to separately review and accept as a condition to their use. From time to time, Varigence may issue updates that it considers critical to the performance of the Software or compliance with applicable laws. Failure to promptly install such updates will terminate Customer’s license, and result in deactivation of the software. b) SUPPORT AND MAINTENANCE PLANS. Unless otherwise specified in a separate agreement, Varigence will not provide direct Customer support. Community supported forums will be provided at no charge through the Varigence website for current Software versions. Varigence makes no guarantees with respect to responses to support requests, but will make reasonable efforts to assist customers on the community support forums. Customers purchasing a Permanent License who wish to receive Updates beyond the first 12 months of their license must purchase a maintenance plan. Information regarding the community support forums, maintenance plans and Updates can be obtained from a Varigence sales representative, by submitting an e‐mail to support@varigence.com. 5. LIMITED WARRANTY. a) LIMITED ONE‐YEAR WARRANTY. Varigence represents and warrants that, to the best of its knowledge, the Software will function substantially in accordance with the documentation it provides to Customer for a period of 12 months following the commencement of each full license purchased by Customer, and that, to the best of its knowledge, the Software, as created by Varigence, does not infringe or otherwise violate the intellectual property rights of any third party in the United States of America or in any other country where Varigence offers it for sale. This warranty does not apply to defects, deficiencies and violations that were not known by Varigence at the time this Agreement was entered. If any such defects, deficiencies or violations were or in the exercise of reasonable prudence should have been known by Varigence prior to the execution of this Agreement by Customer, Varigence will either (i) obtain a license to avoid the infringement, (ii) create an Update to solve the problem or avoid the infringement, (iii) replace the Software with a new version that solves the problem or avoids the infringement at no cost to Customer, and/or (iv) terminate Customer’s license for use of the Software and refund any portion of the license fee that is reasonably allocable to the remaining term of the license. To take advantage of this warranty, Customer must request a remedy in writing during the 12 month period after it enters this Agreement via e‐mail addressed to support@varigence.com. Varigence may, but is not required to take such measures with respect to other defects, deficiencies and or violations. Customer agrees to cooperate with all efforts by Varigence to effectuate any such measures, or, if necessary, at the request of Varigence, terminate any pending license and delete and destroy all relevant Software copies. In all other respects, and to the fullest extent permissible by law, the Software is sold “as is” and without any warranty by Varigence whatsoever as to its use, performance or otherwise. Varigence does not warrant that the Software will be free of all defects and deficiencies; that it will be error‐free, function without interruptions, or other failures, that it will meet all of Customers performance expectations, regardless of whether those expectations have been made known to Varigence, or that the Software will not violate some party’s intellectual property rights in a relevant jurisdiction. b) EXCLUSIONS. Varigence does not warrant against defects, deficiencies, or intellectual property violations resulting from or related to problems with Customer’s equipment or systems; incompatibility between Customer’s equipment or systems and the Software; combinations of the Software by Customer with Customer’s other software, equipment or systems; misuse; abuse; neglect; improper installation, use or maintenance; theft; vandalism; acts of God; acts of terrorism; power failures or surges; casualty; alteration; modification; defects, deficiencies or infringements not reported to Varigence promptly after they become known to Customer; or failure to cooperate with efforts by Varigence to solve a problem or avoid infringement. c) EXCLUSION OF IMPLIED WARRANTIES. EXCLUSION OF IMPLIED WARRANTIES. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, VARIGENCE DISCLAIMS ALL IMPLIED WARRANTIES OF THE MERCHANTABILITY, WORKMANLIKE QUALITY OR FITNESS FOR AN INTENDED PURPOSE WITH RESPECT TO THE SOFTWARE. TO THE EXTENT THAT LOCAL LAW MAY NOT PERMIT SUCH DISCLAIMERS, THE IMPLIED WARRANTY IS LIMITED TO THE DURATION OF THE EXPRESS WARRANTY (12 months). THE LAWS OF YOUR STATE OR JURISDICTION MAY NOT PERMIT SUCH DISCLAIMERS AND LIMITATIONS, SO YOUR RIGHTS MAY VARY. d) LIMITED DAMAGES. VARIGENCE WILL NOT BE LIABLE TO CUSTOMER, ANY END USER OR ANY OTHER PARTY FOR ANY LOSS OF REVENUE OR PROFIT, BUSINESS INTERRUPTION, LOSS OR DAMAGE TO DATA, OR FOR ANY OTHER CONSEQUENTIAL, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES THAT MIGHT BE ASSERTED BASED UPON NEGLIGENCE, RECKLESSNESS, INTENTIONAL WRONGDOING, STRICT LIABILITY, BREACH OF CONTRACT, INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY OTHER LEGAL OR EQUITABLE THEORY OF RELIEF THAT MAY BE ASSERTED WITH RESPECT TO THE SOFTWARE OR ANY TERMS OF THIS AGREEMENT, EVEN IF VARIGENCE MAY HAVE KNOWN OR HAD REASON TO KNOW OF THE POSSIBILITY THAT SUCH DAMAGES WOULD OR COULD RESULT. ANY DAMAGES THAT MAY BE ASSESSABLE AGAINST VARIGENCE IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO $100.00. THE LAWS OF YOUR STATE OR JURISDICTION MAY NOT PERMIT THE EXCLUSION OF CONSEQUENTIAL DAMAGES OR OTHER LIMITATIONS, SO YOUR RIGHTS MAY VARY. 6. DISPUTE RESOLUTION. a) APPLICABLE LAW. This Agreement shall in all respects be governed by the laws of the State of South Carolina. The parties to this Agreement specifically disclaim the U.N. Convention on Contracts for the International Sale of Goods. b) ARBITRATION. To the fullest extent permissible under applicable laws, all disputes arising under or in connection with this Agreement that are not resolved through direct negotiation or mediation will be resolved by binding arbitration to be conducted in Greenville, South Carolina, USA under the rules of the American Arbitration Association (the “AAA”). All disputes will be arbitrated before a single arbitrator under AAA’s Expedited Procedure rules, subject to the consent of Varigence which may be withheld regardless of the amount in controversy. c) JURISDICTION AND VENUE. This Agreement is performable in Greenville County, South Carolina. Venue of any suit or other judicial proceeding hereunder shall be properly placed in Greenville County, South Carolina, and both parties waive any objection to venue of any such proceeding therein. All lawsuits or judicial proceedings of any kind brought by Customer or End User with respect to this Agreement or a license granted pursuant to this Agreement shall be brought in the state and federal courts of South Carolina. 7. TERMINATION. This Agreement remains in effect until terminated. a) TERMINATION BY CUSTOMER. Customer may terminate the Agreement and/or any license(s) that are subject to its terms at any time by providing written notice to Varigence of the termination by e‐mail at support@varigence.com and by deleting and destroying all copies of the Software in its possession or control or the possession or control of its End Users, including any backup copies. Any fees paid prior to termination by Customer are not refundable, and termination shall not relieve Customer of any obligation to pay accrued fees or charges. b) TERMINATION BY VARIGENCE. (i) Termination for Cause. If Customer or any of Customer’s End Users fails to comply with this Agreement, Varigence may terminate this Agreement and/or any license(s) that are subject to its terms effective immediately, or if Varigence asks Customer to take actions to remedy the violation, upon failure by Customer to do so. Upon termination of this Agreement by Varigence, the Customer must delete and destroy all copies of the Software in its possession or control or the possession or control of its End Users, including any backup copies. Any fees paid prior to termination by Varigence for cause are not refundable, and termination shall not relieve Customer of any obligation to pay accrued fees or charges. (ii) Termination without Cause. Varigence may terminate this Agreement and/or any licenses that are subject to its terms for any reason or no reason, effective upon notice or such later date as Varigence may indicate in the notice. In such cases, Varigence will endeavor to provide reasonable notice prior to the termination, but will have no obligation to do so, and Varigence will refund or provide a credit to Customer against outstanding payments for all pre‐paid and unaccrued fees received prior to termination, on a pro‐rata basis. 8. GENERAL PROVISIONS. a) CONSTRUCTION. The section headings in this Agreement are provided solely for convenience. They are not to be used in interpreting this Agreement. The term “including” means “including without limitation.” b) SEVERABILITY. It is agreed that if the scope of any restriction herein expressed is too broad to permit enforcement of such restriction to its full extent, then Customer agrees and consents to the enforcement of such restriction to the maximum extent permitted by applicable law. c) ENTIRE AGREEMENT. This Agreement represents the sole and entire agreement with regard to the subject matter hereof between the partes and supersedes any and all other agreements, written or oral, between them. No waiver or modification of any term of this Agreement shall be effective unless in writing and duly executed by the party to be charged therewith. In the event of any conflict between the terms of this Agreement and any other agreement entered between Varigence and Customer, the terms of this Agreement will take precedence. d) VIOLATIONS. Customer must promptly report any violation of this Agreement, and any viola􀆟on of any third party’s intellectual property that comes to its attention, use its best efforts to avoid or limit any damages to Varigence as a result of the violation, and cooperate fully with Varigence in any investigation of the violation and enforcement of Varigence’s rights in connection with same. e) EXPORT RESTRICTIONS. United States laws and regulation govern the export of the Software. Varigence is not aware of any restrictions imposed on export of the Software under such laws and regulations, but assumes no responsibility for compliance with them. Customer is responsible for compliance with any such restrictions, and all rights to use the Software under this Agreement are conditional on such compliance. Customer will indemnify, defend and hold harmless Varigence from and against any claims, penalties, loss or damage arising out of a breach of said laws and regulations. f) NON‐WAIVER AND SEVERABILITY. Failure by Varigence to enforce any term or provision of this Agreement shall not constitute a waiver of the breach, or any future breach of the term or provision. If any terms or provisions of this Agreement are found by a court in any jurisdiction to be invalid or unenforceable, said terms and conditions will be deemed severed from the agreement in said jurisdiction and its remaining terms and conditions will remain in full force and effect to the fullest extent possible without frustrating its overall purpose and intent. g) PRIVACY POLICY. Aggregate data about software usage created with information collected by Varigence may be made available to third parties by Varigence, but no personal information or other information about Customers, Users or data entered into Varigence equipment or systems will be disclosed to third parties. Provided, however, that Varigence will be free to collect and use such information for purposes of monitoring compliance with this Agreement, and analyzing software performance, customer needs and opportunities to improve Varigence products. h) INTELLECTUAL PROPERTY RIGHTS. Varigence retains ownership of all intellectual property rights of any kind relating to the licensed software. The only intellectual property rights granted under this Agreement are a nonexclusive license for use of the licensed software upon the terms expressly stated herein. Nothing in this Agreement shall be deemed to grant or imply the grant of any additional intellectual property rights to Customer or any End User. Nor shall Varigence be deemed to have agreed to hold in confidence any information disclosed to Varigence or made available to Varigence by Customer or any End User through use of the Software, or communications or feedback regarding customer support and software maintenance or to compensate Customer or any End User for the use thereof except as expressly stated herein. i) AMENDMENT. This Agreement may be amended at any time by Varigence for any or no reason with respect to all terms of the Agreement for which a license fee has not already been paid, effective immediately upon posting the updated version on the Varigence website for the software on which the prior version appeared. Varigence will use reasonable efforts to notify existing Customers of the amendments, but shall have no obligation to do so, and the posted amendment will be effective regardless of whether such notice was accomplished or even attempted. j) ASSIGNMENT. This Agreement and the license granted herein may be assigned by Customer only with the written consent of Varigence, which shall not be unreasonably withheld. Varigence may assign this Agreement without prior approval or consent from Customer or any other party. k) RELATIONSHIP OF PARTIES. This agreement is strictly a license agreement. Nothing stated in or implied by this Agreement will be deemed to establish a joint venture, partnership, employment or agency agreement of any kind. l) SURVIVAL OF TERMS. All of Varigence’s remedies for reverse engineering or other violations of this Agreement, and any other terms which, by their nature, are intended to survive termination of any license granted herein will remain in full force and effect regardless of such termination. m) NOTIFICATION OF COPYRIGHT INFRINGEMENT. It is the intention of Varigence to take full advantage of all rights and safe harbors afforded to a “service provider” as that term is used in the Digital Millennium Copyright Act as codified at Section 512 of Title 17 of the United States Code of Laws (the “DMCA”), and such other comparable laws and regulations as may be applicable in any jurisdiction throughout the world with respect to information stored, transmitted, located or accessed by a user on or with a system or network controlled or operated by or for Varigence. In furtherance thereof, Varigence reserves the right to remove or disable access to any material placed by a user on such system or network upon receipt of a notice of claim that the material infringes a copyright, or reason to know or believe such to be the case, and to terminate access to and use of such system or network for any repeat infringer. It is the policy of Varigence to replace any such material upon receipt of a counter notification in accordance with the terms of such laws. n) AGENT FOR NOTICE. All notices to Varigence, including any notice of copyright infringement and any counter notice from the alleged infringer shall be effective upon receipt by Varigence at the address or addresses specified at www.varigence.com/legal at the time the notice is given, via e‐mail with return confirmation of receipt or an overnight courier service with national recognition in the United States. Notices to Licensees shall be effective upon delivery to any e‐mail, physical or postal address designated by that Customer for communications regarding this Agreement, or in the absence thereof, to any e‐mail, physical or postal address that Varigence knows or has reason to believe is currently used by Customer.