WORKPLACE GO – POWELL SOFTWARE, SAS
END USER LICENSE AGREEMENT

This End User License Agreement (“Agreement”) governs your use of the Powell Software USA Inc. (“Powell”) SAS Software.  By using the Software, you (“Licensee”) agree to the terms of this Agreement.

1. License.

a. Licensee. Subject – to Licensee’s payment and compliance with the terms of this Agreement, Powell hereby grants Licensee a non-exclusive, revocable, worldwide, personal, royalty-free, non-transferable, non-sub licensable, license to access and use (as applicable): (i) the Powell Business Productivity Software Solution; (ii) the Powell Software Management Platform; (iii) the Usage Guide; (iv) general architecture documentation; and (v) other materials related to the same, including any and all updates (collectively hereinafter referred to as “Software”) for Licensee’s personal use during the Term.

b. Powell.  Licensee hereby grants Powell, or a third party integrator authorized by Powell, with a limited license to Licensee’s system environment/infrastructure and other materials, as reasonably requested by Powell, (“Licensee Material”) for the sole purpose of implementing the Software.  Licensee warrants that it has the necessary rights to provide Powell or third party integrator authorized by Powell; and agrees to indemnify Powell and third party integrator authorized by Powell from any third party claims relating to use of such Licensee Material. Notwithstanding the foregoing, Powell may use analytics to monitor, identify, and collect trend and usage statistics, including, without limitation, on how often different features of the  Powell Business Productivity Software Solution and Powell Software Management Platform; are used (collectively, “Analytical Information”).  Such Analytical Information does not include any information that personally identifies the end user.  Licensee hereby agrees that Powell may collect such Analytical Information and use it in anonymized, aggregated form to provide, operate, manage, maintain, and enhance the Software.

2. Licensee Restrictions.  Licensee shall not: (i) decompile, dissemble, reverse engineer or circumvent any technological measure controlling access and use to the Software; (ii) modify or create any derivative works based upon the Software; or (iii) sell, lease, rent, license, sublicense, provide, redistribute, or make available to, or permit use of or access to the Software by any third party.

3. License Prerequisites. The Software is designed to optimize and improve the Business Productivity Solution Licensee identifies.  Licensee is solely responsible for the cost and compliance with terms associated with Licensee’s access and use of the underlying Business Productivity Solution for the Term.

4. Confidentiality. The Parties shall treat the terms and conditions of this Agreement as confidential and shall not disclose them to any third party except in the furtherance of the Parties’ business relationship with each other.  Both parties will adhere to the terms and conditions within the Mutual Non-Disclosure Agreement document.

5. Warranties.

a. Limited Warranty.  Powell warrants that the Software will conform substantially to the description of them contained in the applicable user documentation.  This limited warranty is subject to the following limitations:

i. this limited warranty applies only during the Term, including any renewals (“Warranty Period”);

ii. any implied warranties, guarantees or conditions not able to be disclaimed as a matter of law will last only during the Warranty Period;

iii. this limited warranty does not cover problems caused by accident, abuse or use of Software in a manner inconsistent with this Agreement, or resulting from events beyond Powell’s reasonable control; and

iv. this limited warranty does not apply to problems caused by Licensee’s failure to meet minimum system requirements.

b. Remedies for Breach of Limited Warranty.  If Licensee notifies Powell within the Warranty Period that Software does not meet the limited warranty, then Licensee has the option to; either: (i) receive the amount paid for the Software during the (a)  Term or (b) twelve (12) months prior to delivery of notice to Powell, whichever is less; or (ii)  Powell to update Software to make it conform.  These are Licensee’s only remedies for breach of the limited warranty, unless other remedies are required to be provided under applicable law.

c. DISCLAIMER OF OTHER WARRANTIES. OTHER THAN THIS LIMITED WARRANTY, POWELL PROVIDES NO OTHER EXPRESS OR IMPLIED WAR­RANTIES. POWELL DISCLAIMS ANY IMPLIED REPRE­SENTATIONS, WARRANTIES OR CONDITIONS, INCLUD­ING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUAL­ITY, TITLE OR NON-INFRINGEMENT. THESE DIS­CLAIMERS WILL APPLY UNLESS OTHERWISE RE­QUIRED BY APPLICABLE LAW.

6. Defense of Infringement and Misappropriation Claims. Agreement to Protect.  Powell will defend Licensee against any claims made by an unaffiliated third party that Software infringes that party’s patent, copyright or trademark or makes intentional unlawful use of its trade secret or undisclosed information.  Powell will also pay the amount of any resulting adverse final judgment (or settlement to which Powell consents).  This Section provides Licensee’s exclusive remedy for these claims. The term “undisclosed information” is as defined in Article 39.2 of the TRIPs agreement.

7. Limitation of Liability.  Except for the indemnification obligations of the Parties, neither Party shall be liable for any incidental, consequential, exemplary, special or indirect damages (in­cluding, but not limited to, loss of profits, revenues, data and/or use), even if advised of the possibility thereof.  Neither Party’s total liability under this Agreement shall exceed the Subscription Fees paid by Licensee to Powell for use of the Software during the Term.

8. Term. This Agreement shall commence on the Effective Date and continue for the duration Licensee elects (such initial period, and any renewal period, a “Term”).   At the end of the initial Term, the license and this Agreement will automati­cally renew for a renewal period that equals the initial Term unless a Party provides a termination notice to the other Party at least ninety (90) days before the prior Term end. The license and this Agreement may be renewed in the same manner one or more times, in each case for the same Term length and subject to termination by notice if notice is received within 90-days of the prior Term end. Any termination by notice will be effective at the end of the applicable 90-day period.

9. Termination for breach.  This Agreement may be terminated if the other Party breaches any provision of this Agreement.  The Party desiring to terminate this Agreement for breach shall provide the breaching Party written notice stating the nature of the breach and allow the breaching Party thirty (30) days from the date of the notice to cure the breach.  If the breach is not cured within thirty (30) days, this Agreement shall automatically terminate.

10. Termination for Insolvency or Bankruptcy.  Either Party may immediately terminate this Agreement upon written notice to the other Party in the event: (i) the other Party files a petition for bankruptcy; (ii) the other Party becomes insolvent or makes an assignment for the benefit of creditors; or (iii) a receiver is appointed for the other Party or its business.

11. Miscellaneous.

a. Assignment.  Either Party may assign this Agreement to a wholly owned affiliate provided that it notifies the other Party in writing.  No other assignment or transfer of this Agreement is permitted except with the prior written consent of the other Party.  Any attempts to assign without approval are void and shall be deemed a material breach of this Agreement.

b. Severability. If a court holds any provision of this Agreement to be illegal, invalid or unenforceable, the rest of the document will remain in effect and this Agreement will be amended to give effect to the eliminated provision to the maximum extent possible.

c. Waiver. A waiver of any breach of this Agreement is not a waiver of any other breach.  Any waiver must be in writing and signed by an authorized representative of the waiving Party.

d. Applicable Law.  This Agreement is governed by the laws of the State of Washington without regard to its conflict of laws principles. The 1980 United Nations Convention on Contracts for the International Sale of Goods and its related instruments will not apply to this Agreement.

e. Dispute Resolution.  Any action to enforce this Agreement must be brought in the State of Washington, USA.  This choice of jurisdiction does not prevent either Party from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.

f. Entire Agreement.  This Agreement constitutes the entire agreement concerning the subject matter and supersedes any prior or contemporaneous communications.

g. Survival.  Provisions regarding Payment, Licensee Restrictions, Defense of Infringement and Misappropriation Claims, Limitations of Liability, Confidentiality, and the provisions in this Section entitled “Miscellaneous” will survive termination of this Agreement.

h. No Transfer of Ownership.  Powell does not transfer any ownership rights in Software.  Powell reserves all rights not specifi­cally granted.  Powell Software is protected by copyright and other intellectual property rights laws and international treaties

i. Force Majeure.  Neither Party will be liable for any failure in performance due to causes beyond either Party’s reasonable control (such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), acts of God, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of Software).  This Section will not, however, apply to Licensee’s payment obligations under this Agreement.

j. User IDs. Licensee agrees that it is solely responsible for protecting the confidentiality of user ids and passwords used in connection with Software.

k. U.S. Export Jurisdiction.  The Software is subject to U.S. export jurisdiction.  Licensee must comply with all applicable laws including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments.