STEREOLOGIC LTD.

SOFTWARE LICENCE AND SERVICES AGREEMENT

By accessing this material through the self-learning portal the attached Software License and Services Order Form (the “Order”), each of Licensor and Licensee (collectively, the "Parties") agree to be legally bound by the terms of this Software License and Services Agreement (the Order and the Software License and Services Agreement being collectively, the “Agreement”).

 

1. Provision of Deliverables. (a) Subject to the terms and conditions of this Agreement, Licensor: (i) grants to Licensee, in respect of the Software, a nonexclusive license to use an executable copy of the Software solely for Licensee’s own internal use in such Quantities and at such Sites as identified in Schedule “A”; (ii) grants to Licensee, in respect of the Documentation, a license to use any documentation provided by or on behalf of Licensor (the “Documentation”) to facilitate the use of the Software for the purposes for which it is being provided; and (iii) provides to Licensee the services described in this Agreement (the “Services”) (collectively, the “Deliverables”, as more particularly described in the Order). The Order may expand upon or retract the scope of use contemplated above.

 

(b) If Licensee wishes Licensor to provide additional Deliverables, whether to develop improvements for the Software or to develop similar software products, or otherwise, or to amend certain Services, the Parties can negotiate a mutually agreeable statement of work (the “Statement of Work”). Upon entering into such Statement of Work, such amended or additional Deliverables, as applicable, shall form part of the Deliverables.

 

2. Management and Reporting. The Parties each agree to designate an individual from their respective organizations with adequate authority and full technical competence to deal with matters relating to the implementation of the Deliverables (each, being a “Project Manager”). These individuals will, on behalf of their respective Parties, in accordance with the spirit of this Agreement, use reasonable efforts to co-ordinate the delivery, installation, acceptance and maintenance and support of the Deliverables.

 

3. Implementation. The provision of Deliverables shall be implemented by Licensor in accordance with an implementation plan to be developed by the Parties. The Parties

acknowledge that the implementation process requires the co-operation of both Parties and the ability of Licensor to perform its obligations regarding implementation may, at times, be dependent upon Licensee performing its implementation-related obligations.

 

4. User Acceptance Test. From installation, Licensee shall have 30 days or such other period as set out in the Order to confirm that the Software substantially conforms to the specifications set out in the Order (the “Specifications”). Should Licensee not provide written notice of such confirmation within such period, then the Software shall be deemed accepted. If there is such non-acceptance, Licensor shall apply all commercially reasonable efforts to cause it to so conform, subject to Licensee’s reasonable assistance. If Licensor is unable to cause it to so conform within 90 days of notice of non-conformance, then Licensee shall at such time either elect to accept such Software in such condition or to elect to terminate this Agreement and reject the Deliverables and receive, in lieu of any other remedy, the repayment of the fees paid hereunder by Licensee for the Software license.   

 

5. Fees and Taxes. The amounts specified in this Agreement (the “Fees”) are due on the date(s) specified in the Agreement as identified in Schedule “B”, and must be paid within 30 days of receipt of Licensor’s invoice(s) sent on or after such date. Any duty or other tax levied or payable on this Agreement or on or by Licensor in connection with or arising out of this Agreement (excepting income tax on the income of Licensor) shall, at Licensor’s request, be paid by Licensee to Licensor. Interest on overdue accounts shall accrue at 1.5% monthly (18% per annum) or the maximum rate permitted by law, whichever is less. All dollar amounts referred to in this Agreement are in U.S. funds. Licensee shall pay all amounts in U.S. funds.

 

6. Ownership of Software etc. Licensee acknowledges that each of the Software and the Documentation constitute commercially valuable intellectual property, trade secrets and proprietary data of Licensor and/or its licensors and that no term of this Agreement shall be construed to convey title in the Software or the Documentation to Licensee. Licensee shall not take any action that purports to create a claim, lien or encumbrance on the Software or the Documentation. Any act by Licensee, voluntary or involuntary, purporting to create a claim, lien or encumbrance on the Software or the Documentation shall be void. All materials developed by Licensor in relation to the Software and

Documentation to which Licensee is provided access hereunder including without limitation software modifications, customizations, developments, specifications, updates, upgrades and related documentation, shall be and remain the property of Licensor and/or its licensors, and Licensee shall not obtain any rights or interests therein.

 

7. Restrictions on Software License. (a) Except as appropriate to facilitate the uses of the Software and the Documentation by the Licensee as reasonably contemplated by this Agreement, Licensee shall (i) not copy the Software (except to make one copy solely for backup purposes); (ii) not copy any of the Documentation; (iii) not reverse engineer, decompile or disassemble the Software; (iv) not use the Software except as authorized herein; and (v) take all reasonable precautions to prevent third parties from using the Software in any way that would constitute a breach of this Agreement including without limitation such precautions as Licensee would otherwise take to protect its own proprietary software. (b) Licensor shall have the right, on reasonable notice to Licensee, to visit and inspect Licensee, including without limitation to examine all equipment and records, to question Licensee’s personnel (including without limitation any subcontractors), and otherwise to audit and verify, both physically and electronically, compliance by Licensee with the terms of this Agreement.

 

8. Ownership of Data. No term of this Agreement shall be construed to infer any ownership by Licensor in Licensee’s business data. Such ownership shall rest solely with Licensee and Licensor shall take no action to encumber or otherwise seek a lien against such data. Licensor shall treat such data as Licensee’s Confidential Information.

 

9. Intellectual Property Indemnity. Licensor hereby agrees to defend Licensee from any rightful claim that, as properly used in accordance with the terms of this Agreement, the Software infringes the intellectual property rights of any third party and to pay any amount finally awarded by a Court against Licensee or any settlement amount reached by Licensor, as applicable, provided that (i) Licensor receives prompt written notice of the claim from Licensee under this Section, (ii) Licensor has the right to control the defense of such claim and any related settlement negotiations, and (iii) Licensee provides to Licensor, at Licensor’s request and expense, the assistance, information and authority necessary to perform Licensor’s obligations under this Section. If a claim arises that the Software infringes the intellectual property rights of a third party, or if in Licensor's judgment such a claim is likely to arise, Licensee agrees to allow Licensor, at Licensor's option, to procure the right for Licensee to continue to exercise its rights and licenses granted herein, or to replace or modify the Software in a functionally equivalent manner so it becomes non-infringing. If neither of the foregoing alternatives is available on terms that are reasonable in Licensor’s sole judgment, Licensor may terminate this Agreement and Licensee shall receive reimbursement of all amounts paid to Licensor under this Agreement in the previous 12 months. The foregoing are Licensee’s exclusive remedies for a third party intellectual property infringement claim in respect of the subject matter of this Agreement.

 

10. Services. Licensor covenants and agrees to provide the Services set out in Schedule “C”. Licensor agrees that all Services to be provided by it hereunder shall be

provided in a professional and workmanlike manner by personnel appropriately trained in the performance of such Services.

 

11. Confidentiality. (a) Each Party covenants to the other Party that it shall keep in

confidence the Confidential Information of the other Party to which such Party obtains

access as a consequence of entering into this Agreement and that it will take all reasonable precautions to protect such Confidential Information from any use, disclosure or copying except as expressly authorized by this Agreement. Each Party will take all reasonable precautions to restrict access to the Confidential Information of the other Party to its own employees and contractors bound by confidentiality agreements. Each Party shall implement such procedures as the other Party may reasonably require from time to time to improve the security of the Confidential Information in its possession. Without limiting the generality of the foregoing, Licensee covenants and agrees not to disclose or otherwise make available (i) the Software and related materials, in whole or part, to any person outside of Licensee’s organization, and (ii) the terms of this Agreement, in whole or in part, including without limitation the financial terms, to any person within Licensee’s organization who does not have a need to know and any person outside of Licensee’s organization. This Section 11 shall survive the termination of the Agreement.

 

(b) “Confidential Information” means all information relating to either Party or to such Party’s business, products, sales, customers, trade secrets, technology or financial

position to which access is obtained or granted hereunder, provided, however, that Confidential Information shall not include any data or information which: (i) is or becomes publicly available through no fault of the other Party; (ii) is already in the rightful possession of the other Party prior to its receipt from the other Party as evidenced by documentation; (iii) is independently developed by the other Party without input from any employee or contractor who has received confidential information as evidenced by documentation; (iv) is rightfully obtained by the other Party from a third party whose lawful right to provide such data or information is evidenced by documentation; (v) is disclosed with the written consent of the Party whose information it is; or (vi) is disclosed pursuant to court order or other legal compulsion, provided that the parties co-operate in seeking a secrecy or other appropriate order. To clarify and confirm, the pricing and other business information associated with this Agreement is the Confidential Information of Licensor.

 

12. Limitation on Warranties. Except for those warranties otherwise provided herein, Licensor makes no warranties or representations, and there are no conditions, express or implied, in fact or in law, including without limitation, the implied warranties or conditions of merchantable quality and fitness for a particular purpose and those arising by statute or otherwise in law or from a course of dealing or usage of trade. 

 

13. Limitation of Damages. Except for the covenant respecting confidential information set out in Section 11 (for which there is no limit on the liability of the applicable Party), Licensor shall not be liable for: (i) damages or any remedy which exceeds, cumulatively, the total amount paid by Licensee to Licensor hereunder in the previous 12 months; or (ii) consequential, special or indirect damages, or loss of profit or loss of income or loss of good will or punitive damages, even if Licensor has been advised of the possibility of such damages. The limitation of liability provisions in this Agreement reflect an informed and voluntary allocation of the risks (known and unknown) that may exist in connection with the provision to Licensee hereunder of the Deliverables by Licensor, including the performance of the Software, and such voluntary risk allocation represents a material part of the Agreement reached between the Parties.

 

14. Term and Termination. Subject to termination for cause, this Agreement is effective as of the Effective Date specified in the Order and shall continue until the earlier of: (i) one (1) year after the Effective Date, or (ii) by agreement of the Parties (the “Initial Term”).   After the Initial Term, Licensee may renew this Agreement for subsequent one (1) year periods by paying Licensor the Renewal Fee (as defined in Schedule “B”) at least thirty (30) days prior to the start of a Renewal Period. In the event the Licensee has paid all licence and renewal fees due for the Initial Period or a Renewal Period, the Licensee shall have a perpetual licence for the last version of the Software for which fees have been fully paid.

 

This Agreement may be terminated immediately by a Party, if the other Party fails to perform any material obligation set forth in this Agreement and such default in the case of a default which if remediable continues for a period of 30 days after written notice of such failure has been given by the non-defaulting Party, and if not remediable, upon written notice thereof. Upon the termination of this Agreement, without prejudice to any other rights which the Parties may have, Licensee shall cease to use and destroy any of Licensor’s Confidential Information provided hereunder (including the Software and any improvements thereto) then in its possession or control that has not been fully paid.

 

The provisions of Sections 5 through to 9 and Sections 11 through to 18 shall survive the termination of this Agreement as well as any other parts of this Agreement, which by their nature ought reasonably to survive.

 

15. Public Announcement.  Licensee agrees that Licensor may disclose Licensee’s name in public announcements or documents and marketing and promotional materials (“Public Releases”), which right shall survive the termination of this Agreement. 

 

16. Entire Agreement. This Agreement, including the Order and Schedules, constitutes the entire agreement and understanding between the Parties. All prior agreements, understandings and proposals, oral or written, between the Parties relating to this subject are superseded by this Agreement. If the provisions of this Agreement are in any way inconsistent with the content of the Order and the Schedules, the content of the Order shall prevail first followed by the Schedules.

 

17. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of New York and the federal laws of the United States of America applicable therein and shall be treated, in all respects, as a New York contract. The Parties submit to the non-exclusive jurisdiction of the Courts of New York. The Parties hereby expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods.

 

18. Notices. A notice under or in connection with this Agreement shall be in writing and be delivered personally or by facsimile or by prepaid registered mail to such Party at the address or facsimile number and to the attention of the individual noted in the Order. All notices sent in accordance with this Section shall be deemed to be received on the date of delivery in the case of personal delivery and facsimile transmission or 5 Business Days after the mailing in the case of prepaid registered mail. No notice may be given by prepaid registered mail during a real or apprehended mail strike in the jurisdiction of the recipient of the notice. A “Business Day” means any day, except a Saturday, a Sunday or a statutory holiday, on which banks are generally open for business in the jurisdiction of the recipient of the notice.

 

19. Assignment. Licensor may assign its rights and subcontract its obligations under this Agreement provided that it will continue to be responsible for the actions and omissions of the assignee to the same extent as it is responsible for its own actions and omissions under this Agreement. Licensee shall not assign its rights or obligations under this Agreement without the prior written consent of Licensor. This Agreement is binding upon and shall enure to the benefit of the Parties to this Agreement and their respective successors and permitted assigns.

 

20. Force Majeure. Dates and times by which Licensor is required to render performance under this Agreement shall be automatically postponed to the extent and for the period that Licensor is prevented from meeting them by reason of any cause beyond its reasonable control, provided that Licensor notifies Licensee of the commencement and nature of such cause and uses its reasonable efforts to render performance in a timely manner.

 

21. Miscellaneous. If one or more of these provisions is found to be illegal or unenforceable, this Agreement shall not be rendered inoperative but the remaining provisions shall continue in full force and effect. Except as otherwise provided herein, no term or provision hereof shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and signed by the Party claimed to have waived or consented. Any consent by any Party to, or waiver of, a breach by the other, whether expressed or implied, shall not constitute a consent to, waiver of, or excuse for any other different or subsequent breach. The relationship between the Parties shall be that of independent contractors, and nothing contained in this Agreement shall constitute the

Parties as partners, joint venturers, employer and employee or otherwise as agents or participants in a joint undertaking.

 

SCHEDULE “A”

SOFTWARE AND LICENCE TYPES

 

StereoLOGIC Process Intelligence and Task Mining 2022. Training Software Licenses.

 

 

SCHEDULE “B”

PRICING TERMS

 

As agreed between the Parties.

 

SCHEDULE “C”

DELIVERABLES


  1. StereoLOGIC Process Intelligence and Task Mining 2022. Training Software Licenses.
  2. StereoLOGIC Process Intelligence and Task Mining 2022. Training Guide.