Software License, Support and Services Terms & Conditions

Effective Date: These Terms of Use are effective as of November 1, 2020.

These Software License, Support and Services Terms and Conditions (“Terms and Conditions”) govern the license of Transpara Software, the provision of Support Services and Consulting Services, by Transpara LLC or Transpara International LLC (“Transpara”) as set forth in the customer order form or other agreement (collectively the “Order”) between Transpara and the person or entity identified on the Order (“Licensee”). The Order and the Terms and Conditions are collectively referred to as the “Agreement”.

1. Definitions. For purposes of the Agreement, the following terms have the following meanings:

(a) Authorized Users. “Authorized Users” means Licensee’s employees, consultants, contractors, and agents (i) who are authorized by Licensee to access and use the Transpara Software under the rights granted to Licensee pursuant to this Agreement and (ii) for whom access to the Transpara Software has been purchased.

(b) Concurrent User License. “Concurrent User License” means a license that allows any Authorized User to access and use the Transpara Software, provided that for each Concurrent User License, no more than one Authorized User may access and use Transpara Software at the same time. Concurrent Licenses allow any (i.e. non-specifically designated) Authorized Users to concurrently access and use the Transpara Software as long as the maximum number of Authorized Users accessing and using the Transpara Software does not exceed the aggregate number of Concurrent User Licenses at any one instance in time. A wall-mounted display, unmanned kiosk, or similar use counts as one Concurrent User.

(c) Documentation. “Documentation” means user manuals, technical manuals, and any other materials provided by Transpara, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Transpara Software, including the documentation located at https://www.transpara.com/knowledge-base, https://www.transpara.com/system-requirements/, and https://www.transpara.com/release-notes/.

(d) Enterprise License. “Enterprise License” means a Transpara Software license that allows any or all Authorized Users to access and use the Transpara Software, without limitation as to the number of Authorized Users who may concurrently access and use the Transpara Software. An Enterprise License shall grant access and use to an unlimited number of simultaneous Authorized Users without limitation as to the number of computers, CPUs, virtual environments or Instances upon which the Transpara Software is executed. The details and scope of an Enterprise License will be agreed upon in the Order.

(e) Functionality. “Functionality” means a set of capabilities and functions provided by the Transpara Software, as described in the Documentation or Order.

(f) Instance. “Instance” has the meaning set forth in Exhibit A.

(g) Intellectual Property Rights. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

(h) License Fees/Support Fees/Consulting Fees. “License Fees,” “Support Fees,” and “Consulting Fees” mean the Transpara Software license, Support Services fees, or Consulting Services fees set forth in the Order, including all taxes thereon, paid by Licensee for the Transpara Software license granted and Support Services provided under the Agreement.

(i) Licensed Components. “Licensed Components” has the meaning set forth in Exhibit A.

(j) License Type. “License Type” means the licensing scheme of the Transpara Software as identified in the Order, and as further defined in this Agreement, which may include the following license types: (i) Object-Based license; (ii) Individual license; (iii) Named User license; (iv) Concurrent User license; (v) Enterprise license; or (vi) any other licensing schemes set forth in the Order.

(k) Named User License. “Named User License” means the number of named individuals who are authorized to access the Server Software.

(l) Object-Based License. “Object-Based License” has the meaning set forth in Exhibit A.

(m) Order. “Order” means a written ordering document or other agreement between Transpara and Licensee for the procurement of the Transpara Software licenses and Support Services.

(n) Person. “Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.

(o) Perpetual License and Subscription License. A “Perpetual” license allows Licensee to use the licensed Transpara Software for as long as Licensee complies with all terms of this Agreement. A “Subscription” license allows Licensee to use the licensed Transpara Software for a specified license term, as set forth in the Order, so long as Licensee complies with all the terms of this Agreement.

(p) Production. “Production” has the meaning set forth in Exhibit A.

(q) Server Software. “Server Software” has the meaning set forth in Exhibit A.

(r) Support Services. “Support Services” has the meaning set forth in Section 8.

(s) Transpara Software. “Transpara Software” means the software programs for which Licensee is purchasing a license, as expressly set forth in the Order and as more fully described on Exhibit A, including all Licensed Components, and all Documentation, bug fixes, revisions and Updates provided by or on behalf of Transpara. Transpara Software may include software that is designed and designated by Transpara to operate (i) on a Licensee network server computer (“Server Software”), (ii) on a Licensee computer or mobile device (“Client Software”), or (iii) as an interface with certain third-party hardware or software (“Interface”).

(t) Updates. “Updates” shall have the meaning set forth in Section 8(b) and Exhibit B.

2. License Grant and Scope. Subject to and conditioned upon Licensee’s payment of the License Fees and Licensee’s strict compliance with all terms and conditions set forth in this Agreement, Transpara hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable (except as expressly agreed between the parties), limited license during the Term to use, solely by and through its Authorized Users, the Transpara Software solely as set forth in this Agreement and subject to all conditions and limitations set forth in this Agreement. This license grants Licensee the right, exercisable solely by and through Licensee’s Authorized Users, to:

(a) Download, copy, install and use the Transpara Software in accordance with the Documentation and the License Type. In addition to the foregoing, Licensee has the right to make one copy of the Transpara Software solely for archival purposes and a reasonable number of copies of the Transpara Software solely for backup purposes, provided that Licensee shall not, and shall not allow any Person to, install or use any such copy. All copies of the Transpara Software made by the Licensee: (i) will be the exclusive property of Transpara; (ii) will be subject to the terms and conditions of this Agreement; and (iii) must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.

(b) Use and run the Transpara Software solely as set forth in this Agreement and the Documentation, in accordance with the License Type and solely for Licensee’s internal business purposes (unless otherwise mutually agreed in writing).

3. Third-Party Materials. The Transpara Software may include software, content, data, or other materials, including related documentation, that are owned by Persons other than Transpara and that are provided to Licensee on licensee terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Licenses”). Licensee is bound by and shall comply with all Third-Party Licenses. Any breach by Licensee or any of its Authorized Users of any Third-Party License is also a breach of this Agreement.

4. Third-Party Software. Software designated as “Third-Party Software” on the Order are not subject to this Agreement. Transpara acts only as a distributor for Third-Party Software and all licensing terms, support and warranty service, if any, will be provided by the third-party vendor for this type of software. Notwithstanding any provision in this Agreement, in no event will Transpara be liable to Licensee or to any third party for damages of any kind arising from or related to the Third-Party Software.

5. Use Restrictions. Except as otherwise expressly agreed in writing by the parties in an Order, Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:

(a) Use (including making any copies of) the Transpara Software beyond the scope of the license granted under this Agreement.

(b) Except as may be permitted by this Agreement, provide any other Person, including any subcontractor, independent contractor, affiliate, or service provider of Licensee, with access to or use of the Transpara Software.

(c) Modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Transpara Software or any part thereof.

(d) Combine the Transpara Software or any part thereof with, or incorporate the Transpara Software or any part thereof in, any other programs.

(e) Reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Transpara Software or any part thereof.

(f) Remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Transpara Software, including any copy thereof

(g) Rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Transpara Software, or any features or functionality of the Transpara Software, to any third party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service.

(h) Use the Transpara Software to directly control or operate, or to make mission-critical decisions regarding the control or operation of, any inherently hazardous or FDA-validated environments or systems, including but not limited to: (i) power generation systems; (ii) aircraft navigation or communication systems, air traffic control systems, or any other transport management systems; (iii) safety-critical applications, including medical or life-support systems, vehicle operation applications, or any police, fire, or other safety response systems; and (iv) military or aerospace applications, weapons systems, or environments. Notwithstanding the preceding sentence, Licensee may use Transpara Software in a commercial power generation system so long as Licensee does not use the Transpara Software: (i) in any manner where failure of the Transpara Software would affect the operability of the power generation facility or affect Licensee’s ability to safely cease all operations of the facility; (ii) to control any safety-related system or in any safety-related application; or (iii) in any manner that would violate applicable laws or regulations. Licensee agrees that Transpara may terminate this Agreement and that Licensee will indemnify and hold Transpara harmless from any and all claims, liability, costs, damages, and losses arising out of or related use of the Transpara Software in violation of this Section. Transpara bears no responsibility to test, certify, validate or take any further action regarding the Transpara Software with any government agency. Obtaining such approvals, if any, will be Licensee’s sole responsibility.

(i) Use the Transpara Software in violation of any law, regulation, or rule.

(j) Use the Transpara Software for purposes of competitive analysis of the Transpara Software, the development of a competing software product or service, or any other purpose that is to Transpara’s commercial disadvantage.

6. Responsibility for Use of Software. Licensee is responsible and liable for all uses of the Transpara Software through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Transpara Software by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Software, whether such access or use is permitted by or in violation of this Agreement.

7. Compliance Measures.

(a) The Transpara Software may contain technological copy protection or other security features designed to prevent unauthorized use of the Transpara Software, including features to protect against any use of the Transpara Software that is prohibited under this Agreement. Licensee shall not, and shall not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features.

(b) On an annual basis, and otherwise on Transpara’s written request, Licensee shall conduct a review of its and its Authorized Users use of the Transpara Software and certify to Transpara, in a written instrument signed by an authorized legal representative of Licensee, that it is in full compliance with this Agreement. If Licensee discovers any noncompliance, Licensee shall immediately remedy such noncompliance and provide Transpara with written notice thereof. Licensee shall provide Transpara with all access and assistance as Transpara reasonably requests to further evaluate and remedy such noncompliance.

(c) During the Term, Transpara may, in Transpara’s sole discretion, reasonably audit Licensee’s use of the Transpara Software to ensure Licensee’s compliance with this Agreement. Transpara also may, in its sole discretion, audit Licensee’s systems after the end of the Term to help ensure Licensee has ceased use of the Transpara Software and removed all copies of the Transpara Software from such systems as required. Licensee shall fully cooperate with Transpara’s personnel conducting such audits and provide all reasonable access requested by Transpara to records, systems, equipment, information, and personnel, including machine IDs, serial numbers, and related information. Transpara may conduct audits only during Licensee’s normal business hours and in a manner that does not unreasonably interfere with the Licensee’s business operations.

8. Maintenance and Support.

(a) Subject to Section 8(c), the license granted under this Agreement entitles Licensee to the basic software maintenance and support services (“Support Services”) as described, and on the terms set forth, in Schedule B:

(i) For one (1) year following the date set forth on the Order for any Perpetual license to Transpara Software and, thereafter, for the Term set forth in the applicable Order for Licensee’s purchase of additional Support Services related to the Perpetual license.

(ii) During the Term of any Subscription license to Transpara Software.

(b) Support Services will include the provision of such updates, upgrades, bug fixes, patches, and other error corrections (collectively, “Updates”) as Transpara makes generally available free of charge to all licensees of the Transpara Software then entitled to basic maintenance and support services. Transpara may develop and provide Updates in its sole discretion, and Licensee agrees that Transpara has no obligation to develop any Updates at all or for particular issues. Licensee further agrees that all Updates will be deemed Transpara Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement. Support Services do not include any new version or new release of the Transpara Software that Transpara may issue as a separate or new product, and Transpara may determine whether any issuance qualifies as a new version, new release, or Update in its sole discretion.

(c) Transpara reserves the right to condition the provision of Support Services, including all or any Updates, on Licensee’s registration of the copy of Transpara Software for which support is requested. Transpara has no obligation to provide maintenance and Support Services, including Updates:

(i) for any but the most current version or release of the Transpara Software;

(ii) for any copy of Transpara Software for which all previously issued Updates have not been installed;

(iii) if Licensee is in breach of this Agreement; or

(iv) for any Transpara Software that has been modified other than by or with the authorization of Transpara, or that is being used with any hardware, software, configuration, or operating system not specified in the Documentation or expressly authorized by Transpara in writing.

9. Collection and Use of Information.

(a) Licensee acknowledges that Transpara may, directly or indirectly through the services of third parties, collect and store information regarding use of the Transpara Software and about equipment on which the Transpara Software is installed or through which it otherwise is accessed and used. Without limitation, the collection may be through the provision of Support Services or the security measures included in the Transpara Software as described in Section 7.

(b) Licensee agrees that Transpara may use such information for any purpose related to any use of the Transpara Software by Licensee or on Licensee’s equipment, including but not limited to:

(i) improving the performance of the Transpara Software or developing Updates; and

(ii) verifying Licensee’s compliance with the terms of this Agreement and enforcing Transpara’s rights, including all Intellectual Property Rights, in and to the Transpara Software.

10. Consulting Services. Transpara may provide additional consulting or training services to Licensee (“Consulting Services”) as set forth in an Order, subject to and in accordance with these Terms and Conditions. Licensee shall not control the manner or means by which Transpara performs the Consulting Services. Unless otherwise agreed to in the Order, Licensee shall reimburse Transpara for all reasonable out-of-pocket expenses incurred in performance of the Consulting Services.

11. Intellectual Property Rights.

(a) Licensee acknowledges and agrees that the Transpara Software is provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Transpara Software under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. Transpara reserves and shall retain its entire right, title, and interest in and to the Transpara Software and all Intellectual Property Rights arising out of or relating to the Transpara Software, except as expressly granted to the Licensee in this Agreement. Any translation or modification of any Transpara Software by Licensee in accordance with the Documentation and any Order will be owned at all times by Transpara, and Licensee hereby assigns all ownership of any Intellectual Property Rights in and to such work to Transpara. Licensee shall safeguard all Transpara Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Licensee shall promptly notify Transpara if Licensee becomes aware of any infringement of the Transpara’s Intellectual Property Rights in the Transpara Software and fully cooperate with Transpara in any legal action taken by Transpara to enforce its Intellectual Property Rights.

(b) All Intellectual Property Rights, in and to all documents, work product and other materials that are delivered to Licensee under this Agreement or prepared by or on behalf of Transpara in the course of performing the Consulting Services (collectively, the “Deliverables”), except for any Confidential Information of Licensee incorporated in the Deliverables, shall be owned by Transpara.

12. Order Process/Fees.

(a) Orders. All Orders must be mutually agreed to by the parties in writing and governed by these Terms and Conditions. Any terms and conditions contained in any Licensee purchase order or other sales form or document that are inconsistent with or in addition to the terms and conditions of the Order and this Agreement, shall be deemed to stricken, rejected and of no force or effect.

(b) Payment of Transpara Invoices. Payment of all License Fees, Support Fees, Consulting Fees, and expenses will be due and payable within thirty (30) days of Licensee’s receipt of Transpara’s invoice, unless otherwise agreed by the parties. All fees are non-cancelable, non-contingent and non-refundable except as expressly stated in this Agreement. Licensee will pay all amounts due under Transpara’s invoices in U.S. currency, unless otherwise agreed by the parties. All past due amounts under Transpara’s invoices will incur interest at a rate equal to the lower of 1.0% per month or the highest rate permitted by law. Licensee will be solely responsible for any withholding, use, sales, value-added, import and any other taxes, fees, tariffs or duties associated with this Agreement or Licensee’s use of the Transpara Software and Support Services. This section will not apply when an authorized Transpara reseller invoices Licensee for Orders submitted to such reseller. However, Licensee will comply with any payment terms agreement Licensee may have with such reseller.

(c) Pricing and Price Increases. License Fees and Support Fees are set forth in the Order for the initial Term provided in the Order. Transpara shall have the right to increase prices from time to time for any renewal Term as set forth in this Agreement, or upon written notice to Licensee of not less than thirty (30) days prior to the effective date of renewal term of the Transpara Software license or Support Services.

13. Term and Termination.

(a) This Agreement shall remain in effect for the initial term set forth on the Order unless earlier terminated as set forth in this Agreement (the “Initial Term”). For subscription licenses to Transpara Software or Orders for Support Services, this Agreement will automatically renew for additional one (1) year terms (each a “Renewal Term”) at Transpara’s then-current license and support fees (in an increment not to exceed the greater of 5% or the change in the US Consumer Price Index over the previous year), or other fee provided to Licensee as set forth under Section 11(c), unless either party provides written notice at least thirty (30) days prior to the expiration of the then-current Term of its intent to terminate the Agreement. The Initial Term and each Renewal Term shall collectively be referred to as the “Term”.

(b) Licensee may terminate this Agreement by ceasing to use and destroying all copies of the Transpara Software.

(c) Either party may terminate this Agreement, effective upon written notice to the other party, if the other party materially breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the party provides written notice.

(d) Transpara may terminate this Agreement, effective immediately, if Licensee files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.

(e) Upon expiration or earlier termination of this Agreement, all licenses granted hereunder shall also terminate, and Licensee shall cease using and destroy all copies of the Transpara Software. No expiration or termination shall affect Licensee’s obligation to pay all Licensee Fees and Support Fees that may have become due before such expiration or termination, or entitle Licensee to any refund. Termination of this Agreement by either party will be a nonexclusive remedy for breach without prejudice to any other right or remedy of such party. The rights and obligations of the parties contained in this Agreement that are intended to survive, will survive the termination or expiration of this Agreement.

14. Limited Warranties, Exclusive Remedy, and Disclaimer/Warranty Disclaimer.

(a) Transpara Software.

(i) Solely with respect to Transpara Software for which the License Fee has been paid in full, Transpara warrants that, for a period of one (1) year following the purchase date set forth in the Order the Transpara Software will substantially contain the functionality described in the Documentation, and when properly installed on a computer meeting the specifications set forth in, and operated in accordance with, the Documentation, will substantially perform in accordance with the Documentation. THE FOREGOING WARRANTIES DO NOT APPLY, AND TRANSPARA STRICTLY DISCLAIMS, ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY MATERIALS OR THIRD-PARTY SOFTWARE.

(ii) The warranties set forth in Section 14(a)(i) will not apply and will become null and void if Licensee materially breaches any provision of this Agreement, or if Licensee, any Authorized User, or any other Person provided access to the Transpara Software by Licensee or any Authorized User, whether or not in violation of this Agreement: (i) installs or uses the Transpara Software on or in connection with any hardware or software not specified in the Documentation or expressly authorized by Transpara in writing; (ii) modifies or damages the Transpara Software; (iii) misuses the Transpara Software, including any use of the Transpara Software other than as specified in the Documentation or expressly authorized by Transpara in writing; or (iv) causes Transpara Software to fail, or for there to be an Error, due to any content or materials embedded in the Transpara Software by Licensee or any Authorized User.

(iii) If, during the period specified in Section 14(a)(i), any Transpara Software covered by the warranty set forth in such Section fails to perform substantially in accordance with the Documentation, and such failure is not excluded from warranty pursuant to Section 14(a)(ii), Transpara will, subject to Licensee’s promptly notifying Transpara in writing of such failure, at its sole option, either:

(1) repair or replace the Transpara Software, provided that Licensee provides Transpara with all information Transpara reasonably requests to resolve the reported failure, including sufficient information to enable the Transpara to recreate such failure; or

(2) refund the License Fees paid for such Software, on a pro-rata basis, subject to Licensee’s ceasing all use of and, if requested by Transpara, returning to Transpara all copies of the Transpara Software.

If Transpara repairs or replaces the Transpara Software, the warranty will continue to run from the initial date specified on the Order, and not from Licensee’s receipt of the repair or replacement. The remedies set forth in this Section 14 are Licensee’s sole remedies and Transpara’s sole liability under this Agreement.

(b) Support Services/Consulting Services. Transpara warrants that it shall use reasonable efforts to perform the Support Services and Consulting Services: (i) in accordance with the terms and subject to the conditions set out in the respective Order and this Agreement, and (ii) in a workmanlike and professional manner in accordance with generally recognized industry standards for similar services. Transpara’s sole and exclusive liability, and Licensee’s sole and exclusive remedy, for breach of the warranties in this section shall be for Transpara to use reasonable commercial efforts to promptly cure any such breach. The foregoing remedy shall not be available unless Licensee provides written notice of such breach within ten (10) days after delivery of the Support Services or Consulting Services giving rise to the claim.

(c) DISCLAIMER. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTIONS 14(a) AND 14(b), THE TRANSPARA SOFTWARE, SUPPORT SERVICES, AND CONSULTING SERVICES, ARE PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, TRANSPARA, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE TRANSPARA SOFTWARE, SUPPORT SERVICES AND CONSULTING SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, TRANSPARA PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE TRANSPARA SOFTWARE, SUPPORT SERVICES, OR CONSULTING SERVICES, WILL MEET LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

15. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:

(a) IN NO EVENT WILL TRANSPARA OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE TRANSPARA SOFTWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT TRANSPARA WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

(b) IN NO EVENT WILL TRANSPARA’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO TRANSPARA PURSUANT TO THIS AGREEMENT FOR THE TRANSPARA SOFTWARE, SUPPORT SERVICES OR CONSULTING SERVICES, IN THE 12 MONTHS PRIOR TO THE DATE THE CLAIM AROSE.

(c) THE LIMITATIONS SET FORTH IN SECTION 15(a) AND SECTION 15(b) SHALL APPLY EVEN IF LICENSEE’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

16. Indemnification.

(a) Transpara Indemnity Obligation. Transpara will indemnify, defend and hold Licensee, and its respective directors, officers, employees and contractors doing work for Licensee (each, an “Indemnified Party”) free and harmless from any and all claims, damages, losses, costs, actions and expenses brought against an Indemnified Party to the extent that it is based upon a claim that the Transpara Software infringes any patent, copyright or other intellectual property right, or misappropriates a trade secret of any third party, (each, a “Claim”) and will pay any costs, damages and expenses (including reasonable attorneys’ fees attributable to such Claim) that are finally awarded or paid in settlement in any such Claim, provided that: (i) the Indemnified Party promptly notifies Transpara in writing of the Claim; (ii) the Indemnified Party grants Transpara sole control of the defense and settlement of the Claim (except that an Indemnified Party shall have the option of participating in such defense or settlement with counsel of its own choosing at its expense); and (iii) the Indemnified Party provides Transpara with all assistance, information and authority reasonably required for the defense and settlement of the claim, at Transpara’s expense.

(b) Injunction. If an Indemnified Party’s use of any of the Transpara Software hereunder is, or in Transpara’s opinion is likely to be, subject to a Claim, Transpara may, at its sole option and expense: (i) procure for the Indemnified Party the right to continue using such Transpara Software, as applicable, under the terms of this Agreement; (ii) replace or modify such Transpara Software so that it is non-infringing, but retains substantially the same functionality; or (iii) if options (i) and (ii) above cannot be accomplished despite Transpara’s reasonable efforts, then Transpara may terminate the Indemnified Party’s rights and Transpara’s obligations hereunder with respect to such Transpara Software and refund to Licensee the prorated portion of the License Fees paid for subscription-based Transpara Software commencing on the date the claim was received by Transpara. For perpetually licensed Transpara Software, such refund to the Indemnified Party will be the unamortized portion of the fees paid based upon a straight-line five (5) year depreciation commencing as of the date the Indemnified Party received such Transpara Software.

(c) Transpara Indemnity Exclusions. Notwithstanding the above, Transpara will have no indemnification obligations or liability for a Claim arising from: (i) any use of the Transpara Software beyond the scope of this Agreement; (ii) an Indemnified Party’s use of the Transpara Software in combination with hardware, software or other materials not specified in the Documentation, including without limitation any material embedded in the Transpara by or on behalf of Licensee or any Authorized Users, if the basis for the Claim is such combined use; (iii) an Indemnified Party’s failure to use updated or modified versions of the Transpara Software provided or made available by Transpara without additional charge; or (iv) Transpara’s compliance with written designs or specifications provided by an Indemnified Party. The exclusions in (i)-(iv) apply to the extent that a Claim would have been avoided but for an Indemnified Party’s improper use of the Transpara Software. THE PROVISIONS OF THIS SECTION 16 SET FORTH TRANSPARA’S SOLE AND EXCLUSIVE OBLIGATIONS, AND LICENSEE’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.

17. Export Regulation. The Transpara Software may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export, or release the Transpara Software to, or make the Transpara Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Transpara Software available outside the US.

18. Confidentiality.

(a) Confidential Information. In connection with this Agreement, each party (the “Disclosing Party”) may disclose or make available Confidential Information to the other party (the “Receiving Party”). Subject to Section 18(b), “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, whether or not marked, designated, or otherwise identified as “confidential.” Without limiting the foregoing: (a) the Transpara Software (including the Documentation) is the Confidential Information of Transpara; and (b) the terms and existence of this Agreement are the Confidential Information of Transpara.

(b) Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

(c) Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall during the Term and for a period of five (5) years thereafter: (i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; (ii) not disclose or permit access to Confidential Information other than to its representatives who: (1) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement, (2) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section and (3) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section; (iii) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most sensitive information and in no event less than a reasonable degree of care; (iv) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps and cooperate with Disclosing Party to prevent further unauthorized use or disclosure; and (v) ensure its representatives’ compliance with, and be responsible and liable for any of its representatives’ non-compliance with, the terms of this Section.

Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Section with respect to any Confidential Information that constitutes a trade secret under any applicable law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under applicable law other than as a result of any act or omission of the Receiving Party or any of its representatives.

(d) Compelled Disclosures. If the Receiving Party or any of its representatives is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, the Receiving Party will: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under this Section; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section, the Receiving Party remains required by law to disclose any Confidential Information, the Receiving Party will disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, will use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.

19. US Government Rights. The Transpara Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if Licensee is the US Government or any contractor therefore, Licensee shall receive only those rights with respect to the Transpara Software as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.

20. Miscellaneous.

(a) All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Arizona without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be instituted in the federal courts of the United States of America or the courts of the State of Arizona in each case located in the City of Phoenix and County of Maricopa, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such legal suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court. The parties further hereby waive any right to a trial by jury with respect to any lawsuit or judicial proceeding arising or related to this Agreement.

(b) Transpara will not be responsible or liable to Licensee, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or Licensee equipment, loss and destruction of property, or any other circumstances or causes beyond Transpara’s reasonable control.

(c) All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth in the Order, or to such other address as may be designated by a party from time to time in accordance with this Section 20(c).

(d) This Agreement, together with the Order, all schedules, and exhibits attached hereto and all other documents that are incorporated by reference, constitutes the sole and entire agreement between Licensee and Transpara with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.

(e) Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Transpara’s prior written consent, which consent shall not be unreasonably withheld or delayed. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section is void. Transpara may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

(f) This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

(g) This Agreement does not create any agency, employment, partnership, joint venture, franchise or other similar or special relationship between the parties. Neither party will have the right or authority to assume or create any obligations or to make any representations, warranties or commitments on behalf of the other party or its affiliates, whether express or implied, or to bind the other party or its affiliates in any respect whatsoever.

(h) This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

(i) If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

(j) The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

EXHIBIT A
TRANSPARA SOFTWARE DESCRIPTIONS

1. Client/Server Software Products (Currently includes the Visual KPI Server, Visual KPI Server Manager, Visual KPI Remote Context Server/Service, Visual KPI Designer, Visual KPI Interfaces, Visual KPI Enterprise ADI). Licensee’s use of the Transpara Software cannot exceed the quantity of Licenses specified in the Order. Licensee’s use of Server Software cannot exceed the number of Licensed Components created in such Server Software (as measured by the Transpara Software or the underlying application platform), Interfaces, Visual KPI Designers, objects/tags/KPIs (for Object-Based Licenses), Remote Context Servers, or Authorized Users (named or concurrent) as applicable and specified in the Order. Licensed Components designated in an Order are for use with one Visual KPI Server and cannot be moved to or otherwise used with any other Visual KPI Server(s) without Transpara’s express written consent. Additionally, except as otherwise expressly provided in this Agreement, once Licensed Components have been designated by Licensee in an Order for use with a Visual KPI Server module, Licensee cannot return such Licensed Components to Transpara for any credit or refund of any kind. Licensee’s use of Interfaces will not exceed the number of instances specified in the applicable Order.

2. Thin-Client Products (Currently includes Visual KPI Client Access Licenses (“CAL”)). In using this type of Transpara Software, Licensee will not exceed the quantity of licenses specified in the applicable Order.

3. Development Systems (Currently includes any Transpara Software designated by Transpara or Licensee for development or support purposes). This type of Transpara Software is licensed solely for Licensee’s internal development and support purposes on a single computer. Such Transpara Software cannot be used in Production or otherwise used to process any data generated from Licensee’s business operations.

4. Standby Servers. For each Server Software license, Licensee may install the Server Software on a standby backup server (a “Standby Server”). To qualify as a Standby Server, unless otherwise agreed by the parties, the Licensee server may only be used as a back-up system to a designated primary production server without Licensee access or active Interface connections. Standby Servers may not contain any Licensed Components that are not also contained in the primary production Server the Standby Server is backing up. A Standby Server may only be used as a Production server with Licensee access and active Interface connections during such times that the primary Production server is not in operation.

5. Additional Definitions.

(a) Instance. “Instance” means an individual named site that appears in the Visual KPI Server Manager, with its own unique URL, and running within a single copy of the Visual KPI Server Software which is executing on one or more CPUs as rendered and made available for access through a collection of computer processing technologies, including virtualization hardware and/or software, applications, middleware, hypervisors, containers, servers, computers, networks and switches.

(b) Interface. “Interface” means an individual connection to a single source of data, such as a relational, OLAP or time-series database, API, web service, SDK, sensor, device, computer, software application or other mechanism for the purpose of reading data. Each individual data source may have one or multiple Interfaces per source. Interfaces may be included in the Visual KPI Server Software or may be created separately, and include all connection mechanisms, queries, and security settings.

(c) Licensed Components. “Licensed Components” means an individual instance of a software component or module that is created and exists in certain Server Software or Client Software modules that is used to setup, configure or store KPIs or data structures.

(d) Object-Based License. “Object-Based License” means a license based on the number of measured Objects (often referred to as a “KPI-Based License” or “Tag-Based License”). For the purpose of Object-Based Licenses, an “Object” is defined as any individual scalar value, data source tag or metric that can be read by and/or stored in the Visual KPI software. This includes any scalar value that can be measured, used within a calculation or table, is the result of a calculation, can be viewed as part of a visualization in the Client Software, or can otherwise be read by installed data source Interfaces.

(e) Production. “Production” means, for Instances of the Visual KPI Server Software, only such Instances deployed for operational (“production”) use and using Production data.

(f) Remote Context Server. “Remote Context Servers” and “Remote Context Services” means the features and mechanism by which the Visual KPI Server Software can periodically read configuration information from external sources of metadata, such as the hierarchy/group definitions, KPIs, charts, dashboards, tables, and any other settings required to remotely configure Visual KPI from other applications or metadata. Remote Context Servers may be included in the Visual KPI Server Software or may be created separately by Transpara, and include all connection mechanisms, queries, and security settings.

EXHIBIT B
SUPPORT SERVICES

1. Designated System Manager. As a condition to Transpara’s provision of Support Services, Licensee must designate one or more “System Managers” as the individual(s) responsible for maintaining the integrity of the Licensee hardware and software of the system of which the Transpara Software is a part (the “System”). Licensee is responsible for maintaining individuals trained as System Managers.

(a) Support Services. For so long as Licensee is current on payment of Support Fees or License Fees, Transpara will provide Licensee with the following Support Services:

(i) Telephone and Electronic Assistance. The System Manager will be entitled to contact Transpara support staff on business days between 9 am to 6 pm US Mountain Time, using the contact information set forth at https://www.transpara.com/support, to ask questions or seek advice regarding the use of the Transpara Software. Transpara will assist the System Manager in using the Transpara Software and in identifying and providing workarounds, if possible, for problems with the Transpara Software. Such assistance may include online meetings and computer communications to Licensee’s facilities. Transpara will use take reasonable efforts to return calls for support relating to Errors in the Transpara Software in accordance with the response and resolution guidelines in Section 4, below.

(ii) Product Suggestions. Licensee may submit product suggestions to Transpara identifying desired improvements in the Transpara Software. Licensee agrees that all such suggestions will be owned by Transpara, and Licensee hereby assigns all Intellectual Property Rights in the suggestions to Transpara. Transpara retains the right to determine the final disposition of all such suggestions and Licensee recognizes that Transpara is free to use such suggestions in any manner. If Transpara decides in its sole judgment to incorporate any such suggestion, it will do so by providing Licensee with an Update, as described in subsection (iv) below.

(iii) Error Resolution. Transpara will use reasonable efforts to provide Licensee with an avoidance procedure for and a correction of each material defect in the Transpara Software that causes the Transpara Software not to conform in all material respects with the Transpara Documentation.

(iv) Software Updates. As Transpara develops permanent solutions for known Transpara Software issues or defects, Transpara will, from time to time, incorporate such solutions into planned updates to the Transpara Software, as applicable (“Updates”). Such Updates may also include minor enhancements and extensions or other changes to the Transpara Software as are determined by Transpara to be suitable to the uses made of the Transpara Software by Transpara’s licensees and are made available by Transpara to its other licensees without additional charge. Transpara will provide Licensee with such instructions and/or documentation that Transpara considers reasonably necessary to assist in a smooth transition to use of such Updates. In the event Transpara decides in its discretion to update the appropriate software reference manual or to issue release notes or other documentation corresponding to Updates, Transpara will make available the same to Licensee at no charge as they become available.

(b) Premium Support Services. In addition to the Support Services set forth in this Agreement, Transpara may offer Premium Support Services on a paid subscription basis to Licensee. Premium Support Service details and negotiated commitments shall be as set forth in the applicable Order.

(c) Remote Support Services. Licensee acknowledges that Transpara may occasionally require reasonable remote access to the Transpara Software at Licensee’s facility for support purposes and that delays in obtaining such remote access may affect Transpara’s ability to provide Support Services. Transpara acknowledges that reasonable remote access will be subject to Licensee’s standard security policy and that access may be limited at Licensee’s sole discretion to online meeting software such as Microsoft Teams, Zoom, Skype, WebEx, GoToMeeting, GoToAssist or similar Web-based facility with control retained by Licensee.

2. Conditions to the Provision of Support Services. All Support Services are subject to the following conditions:

(a) Nonqualified Products. Transpara shall have no obligations or responsibilities of any kind with respect to any hardware or software product other than the Transpara Software (“Nonqualified Products”). If the provision of Support Services is made more difficult or impaired because of Nonqualified Products, Transpara shall notify Licensee, and Licensee will immediately remove the Nonqualified Product at its own risk and expense during any efforts to render Support Services under this Agreement. Licensee shall be solely responsible for the compatibility and functioning of Nonqualified Products with the Transpara Software.

(b) System Versions. All Licensee System hardware and software must be maintained at the revision level deemed necessary by Transpara as specified in the Documentation for proper operation of the Transpara Software.

(c) Backup Procedures. Licensee is solely responsible for maintaining a procedure external to the Transpara Software for reconstruction of lost or altered files, data, or programs to the extent deemed necessary by Licensee and for actually reconstructing any lost or altered files, data or programs.

(d) Operator Procedures. Licensee shall at all times follow routine operator procedures as specified in the Documentation.

(e) Isolation. Licensee is solely responsible for ensuring that the System is isolated from any process links or anything else that could potentially cause harm before requesting or receiving remote Support Services.

(f) Licensee Content and Materials. Transpara shall have no obligations or responsibilities of any kind with respect to any data, content or materials included by or on behalf of any Licensee or Authorized User in, or in connection with the use of, the Transpara Software.

Contact Us: If you have any questions, comments or concerns regarding Transpara’s Software License, Support and Services Terms and Conditions, please send email to: info@transpara.com

However, please note that communications made through the Site’s e-mail and messaging system shall in no way be deemed to constitute legal notice to Transpara or any of its officers, employees, agents or representatives, such as where notice to Transpara is required by contract, or any federal, state or local laws, rules or regulations. You may provide notice to Transpara at:

Transpara LLC / Transpara International LLC
15900 N 78th Street, Suite 100
Scottsdale, AZ 85260
United States of America

Phone: +1-925-218-6983
Email: info@transpara.com