21. Software License Agreement (SLA)

1.Definitions

1.1. APEX means Apex Turbine Testing Technologies, Inc., a company incorporated under the laws of the state of Tennessee in the United States of America.

1.2. CUSTOMER means the person or organization purchasing or using APEX Software and Licensed

Materials.

1.3. Maintenance Agreement is a written agreement between APEX and CUSTOMER whereby APEX provides technical support to CUSTOMER and correction of software defects identified by CUSTOMER under agreed-upon terms and conditions.

1.4. Software and Licensed Materials means any materials that APEX provides to CUSTOMER including but not limited to software, training materials, technical descriptions of the Software, and other reference materials.

  1. Software License, Payment, and Installation

2.1. APEX grants to CUSTOMER a nonexclusive, perpetual, nontransferable license to use the Software and the Licensed Materials in accordance with the mechanism described in section 2.4. Such grant extends to use Enhancements as APEX produces them and provides them to CUSTOMER under terms of an existing Maintenance Agreement between the parties.

2.2. APEX may deliver the Software and Licensed Materials to CUSTOMER using a variety of means and completely at the discretion of APEX. Methods of delivery of the Software and Licensed Materials may include installation executables, zip files or other means provided through distributable media (such as DVDs, Removable USB devices, etc.) or by download over APEX provided internet web portals. Customer may install the Software and Licensed Materials on any appropriate computational platform that adheres to APEX’s published performance minimums.

2.3. CUSTOMER shall pay APEX the cost of the Software and Licensed Materials at an agreed-upon price and in accordance with agreed-upon payment terms. If payments terms are unspecified, CUSTOMER payments are to be NET 30. Unless otherwise specified in writing and agreed to by both parties, all payments are to be in U.S. Dollars. Likewise, CUSTOMER is responsible for any additional duties, taxes, import fees, currency exchange fees of other fees as they may arise in association with the transaction. All such costs will be paid by CUSTOMER.

2.4. Upon full payment for the Software and Licensed Materials, APEX shall provide CUSTOMER Software License Keys of the form and number specified by the purchase, which enable the Software and Licensed Materials to operate on an appropriate computational platform. APEX may, in its sole discretion, provide CUSTOMER with Temporary License keys as described in 2.4.1 for purposes of performing acceptance testing or until payment in full is received. Types of license keys include:

2.4.1.NODE-LOCKED licenses which enable the Software and Licensed Materials to function on a single CUSTOMER identified computation platform as identified in section 2.2. Such license may be Perpetual, that is, non-expiring, or Temporary with a pre-established expiration date. NODE- LOCKED licenses may be moved from one computational platform to another under the terms of an existing Maintenance Agreement between the parties, by requesting new license keys from APEX. In the event that no Maintenance Agreement exists between the parties, APEX may, in its sole discretion, provide new keys and charge CUSTOMER a fee for this service.

2.4.2.FLOATING licenses which can be accessed over a network to an APEX-configured LICENSE SERVER. FLOATING licenses may be used on any computation platform upon which the Software and Licensed Materials have been installed as described in section 2.1 and which have network access to the LICENSE SERVER. FLOATING licenses installed on a LICENSE SERVER shall be managed using an appropriate software license manager of APEX choosing.

2.4.3.Such LICENSE SERVER described in 2.2.2 may support so-called license BORROWING, that is, use of a license from a LICENSE SERVER. Such BORROWED licenses will automatically be configured as expiring licenses with the expiration date of the license controlled via the license manager. Upon reaching the expiration date of the license, the license will be automatically re- included on the LICENSE SERVER. CUSTOMER may also return licenses to the LICENSE SERVER manually by reconnecting the computational platform upon which the BORROWED license was loaded to the LICENSE SERVER network.

2.5. All licenses granted hereunder are for the internal business use of CUSTOMER and Affiliates only. CUSTOMER may extend the use of the Software to leased employees or outsourced labor as long as the leased employees or outsourced labor use the software only for CUSTOMER’s benefit. CUSTOMER will ensure that such leased employees and outsourced labor abide by all applicable terms and conditions of this Agreement and ensure that such leased employees and outsourced labor are subject to confidentiality agreements at least as comprehensive and binding as between CUSTOMER and APEX.

2.6. This license does not permit CUSTOMER to: (i) Use the Software for a service bureau application for the benefit of third parties (other than Affiliates who are licensed hereunder, to the extent of such licensing); or (ii) sublicense, or rent the Software; or (iii) use the Software for any purpose other than CUSTOMER’s internal business use.

  1. Intellectual Property

3.1. CUSTOMER shall not reverse assemble, reverse engineer, decompile, or unlock the Software in whole or in part for any reason.

3.2. APEX shall retain all rights to any computer source code in any form.

3.3. APEX retains title to the Software and Licensed Materials it provides to CUSTOMER. CUSTOMER shall have title to any removable, distributable media on which APEX provides the Software and Licensed Materials to CUSTOMER.

3.4. CUSTOMER shall have title to all analyses, recommendations, reports, and memoranda that APEX creates for CUSTOMER that are specific and unique to CUSTOMER. APEX retains title to any of its Software, Licensed Materials, any Modifications or Enhancements, general ideas, concepts, techniques, algorithms, tools and software components (including source code) that APEX develops in service to CUSTOMER .

  1. Software Warranty, Indemnification, and Limitation of Liability

4.1. APEX warrants that it is the owner or licensor of the Software and has the authority to license Software as stated herein. APEX further warrants that the Software shall, if properly maintained and operated, perform substantially in accordance with APEX’s current published specifications which may include hardware performance requirements and operating system limitations. Such warranty shall apply to all Enhancements and any other updates or upgrades to the Software provided under an existing Maintenance Agreement between the parties.

4.2. APEX further warrants that it has taken reasonable steps to test the Software for Disabling Code (e.g., a virus, bot, timer, clock, counter, or similar routine that would erase data or programming, or cause the Software or related equipment to become inoperable or otherwise incapable of being used in the full manner for which is was designed and created) and that to the best of APEX’s knowledge the Software is free of Disabling Code.

4.3. Unless specifically agreed to by both parties in writing elsewhere, APEX DOES NOT WARRANT THAT THE FUNCTIONS PERFORMED BY SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS.

4.4. APEX DOES NOT WARRANT THAT SOFTWARE WILL OPERATE UNINTERRUPTEDLY, THAT IT WILL OPERATE IN COMBINATION WITH OTHER SOFTWARE, OR THAT ALL PROGRAM DEFECTS ARE CORRECTABLE. THE WARRANTIES HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. APEX PROVIDES ALL THIRD PARTY SOFTWARE UNDER THE WARRANTY PROVIDED BY SUCH THIRD PARTY, AND MAKES NO FURTHER WARRANTY OR REPRESENTATION EITHER EXPRESS OR IMPLIED THAT PROVIDED HEREIN AS TO THE FITNESS, QUALITY, DESIGN, CONDITION, CAPACITY, SUITABILITY, MERCHANTABILITY, PERFORMANCE OR WORKMANSHIP OF THE THIRD PARTY PRODUCTS INCLUDED IN THE SOFTWARE.

4.5. APEX shall indemnify, defend, and hold CUSTOMER harmless from any damages and costs CUSTOMER incurs for any action based on infringement of a United States patent, trade secret, copyright, or other intellectual property right as a result of CUSTOMER’s use of Software if:

4.5.1.CUSTOMER notified APEX promptly in writing of any such claim or suit against CUSTOMER

4.5.2.CUSTOMER cooperates with APEX, and permits APEX to defend or settle such claim or suit on behalf of CUSTOMER; and

4.5.3. CUSTOMER has continued in a Maintenance Agreement between the parties without interruption from the date of this Agreement until the date of such claim, or before the date of such claim reinstated a Maintenance Agreement between the parties, or, if offered by APEX, CUSTOMER accepted equivalent non-infringing Software from APEX at no cost to CUSTOMER if Software that CUSTOMER would have been obtained through the Maintenance Agreement or equivalent non- infringing Software would have given CUSTOMER a complete defense to such claim or suit.

The foregoing states APEX’s entire liability with respect to infringements of any patents, trade secrets, copyrights, or other intellectual property rights by Software or Licensed Materials.

4.6. NEITHER APEX NOR ANY OF ITS RESELLERS, SUPPLIERS AND/OR AGENTS SHALL BE LIABLE FOR LOSS OF PROFIT, LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS, LOSS OF GOODWILL OR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OF ANY KIND, THIS AGREEMENT OR ARISING FROM THE SUBJECT MATTER HEREOF, EVEN IF CUSTOMER ADVISES APEX OF THE POSSIBILITY OF SUCH DAMAGES. APEX AND ITS RESELLERS, SUPPLIERS AND/OR AGENTS’ TOTAL LIABILITY FOR ALL CLAIMS (EXCLUDING PHYSICAL INJURY OR TANGIBLE PROPERTY DAMAGE RESULTING FROM NEGLIGENCE OR WILLFUL MISCONDUCT) THAT ARISE OUT OF THIS AGREEMENT SHALL NOT EXCEED THE LICENSE AND SERVICE PLAN FEES CUSTOMER PAID TO APEX (OR RESELLER OR AGENT) FOR THE SOFTWARE THAT IS THE SUBJECT MATTER OF THE CLAIM OR CAUSE OF ACTION.

  1. General Provisions

5.1. This Agreement shall be governed by and interpreted in accordance with the plain English meaning of its terms and the internal substantive laws of Tennessee, without regard to its conflict of laws principles.

5.2. Each party undertakes to keep itself informed of the Export Administrative Regulations of the U.S. Department of Commerce and the International Traffic in Arms Regulations of the U.S. Department of State and agrees to comply with them. Each party shall obtain prior authorization from the disclosing party and the appropriate government authority before re-export of U.S. origin technical data received this Agreement.

5.3. This Agreement may be assigned by APEX to any subsidiary or affiliate of APEX at any time. This Agreement may be assigned by either party to any other person or entity as part of the transfer to that person or entity of all or substantially all of the business of such party or that party’s division. APEX shall promptly notify CUSTOMER of any such assignment.

5.4. No waiver or modification of any of the provisions hereof shall be binding unless in writing and signed by duly authorized representatives of APEX and CUSTOMER.

https://apexturbine.com/sla/

22. Software Maintenance Policy

  1. Applicability

1.1. New Purchases: Software Maintenance for Software and Licensed Materials is available to all APEX software customers for a period of one year from the date of purchase unless specifically excluded from the purchase agreement. Date of purchase is the date Software License keys were issued to customer in fulfillment of a purchase order or other purchase transaction.

1.2. Maintenance Renewal: Customers will be automatically quoted for renewal of Software Maintenance within 90 days of the expiration of an existing Software Maintenance period. Should CUSTOMER choose to renew Software Maintenance, they must do so no later than 30 days after the expiration of current the Software Maintenance period to avoid penalties. Upon renewal, the term of the renewed Software Maintenance period will be the day after expiration of the expiring period and will extend through the period purchased by CUSTOMER (one-year minimum).

1.3. Software Maintenance Re-purchase: CUSTOMERS may repurchase lapsed Software Maintenance by purchasing “back-maintenance”, that is, CUSTOMER must pay for each month the Software Maintenance was lapsed and at least one additional year at the then-current, standard maintenance rate or computation methodology. CUSTOMER will receive a price quote in advance of re-purchase of Software Maintenance.

APEX will maintain a record of each CUSTOMER’s Software Maintenance status for all products purchased by CUSTOMER on the APEX User Site. CUSTOMERS can access information about the status of their maintenance at https://apexturbine.com/users.

  1. Benefits

2.1. Software Updates: CUSTOMERS are provided access to updates of APEX Software and Licensed Materials of the type purchased during an active Software Maintenance period. Such updates may provide new functionality and/or address defects (bugs) as identified by all CUSTOMERS or as part of APEX’s ongoing software quality improvement. Occasionally, updates provided during a valid Software Maintenance Period may require that the CUSTOMER be provided with new Software License keys.

2.2. Help Desk: CUSTOMERS are encouraged to visit the Frequently Asked Questions section of the APEX User Site to address specific questions about the operation of APEX Software products. If none of the FAQ’s listed directly address the CUSTOMER’s question, the CUSTOMER should submit the question so that it and the APEX answer will be included in future FAQ’s.

2.3. Telephone Help: CUSTOMERS who require interactive help may call the APEX help line at +1 (931) 486–0082 during normal business hours (M-F, 08:00–17:00 US Central Time, UTC-5) to speak with our staff. Calls received during other periods will be routed depending on severity (see section 3). Critical issues, as defined in Section 3, will be routed to the APEX Help Call- Center where an operator will ask for basic information about your issue and then contact APEX personnel. Issues that are not critical (as defined in Section 3) may leave a message. APEX personnel will return the call within 24 hours.

2.4. Software Defect Resolution: CUSTOMER may report Software defects or request new features by submitting a “Ticket” on the APEX User Site. CUSTOMER will receive an automated message indicating the Ticket has been issued and the issue will be automatically assigned to one of our developers. Issues will be assigned a severity in accordance with the descriptions of Section 3 and addressed as appropriate.

3. Software Error Classification Defects (bugs) in APEX software will be categorized as follows:

3.1. CRITICAL – Errors prevent work from continuing. Note, this category cannot be applied to any APEX pretest (e.g., GageMap), or posttest (e.g.DX, DV Software products. If the CUSTOMER suspects their issue may be CRITICAL, they should notify APEX immediately by telephone in accordance with Section 2.3 and report that their issue is CRITICAL. Symptoms may include:

3.1.1.System aborts preventing data from being acquired.

3.1.2.Loss of data already recorded through un-commanded over-write.,

3.1.3.Failure of real time monitoring functionality preventing CUSTOMER’s ability to monitor or control data recording, or signal health.

3.2. SEVERE – Errors that cause the operating system to abort or lock-up, errors that cause the software to crash, or errors that seriously limit intended functionality to the extent CUSTOMER cannot use the software for the as-designed purpose.

3.3. IMPORTANT – Errors for which work-arounds are available to enable CUSTOMER to use the Software for the as-designed purpose. Errors that create a nuisance for the operator should be classified as IMPORTANT.

  1. Resolution Schedule

4.1. APEX personnel with work interactively with the CUSTOMER to diagnose CRITICAL errors and determine a course of action which could involve hardware diagnostics.

4.1.1.In the event of hardware issues such as a failed disk drive, monitor, digitizer, etc., CUSTOMER will be instructed to replace the failed component with a pre-purchased spare, or to otherwise repair the hardware defect.
4.1.2.In the event that the issue has been identified as a Software defect, APEX will work interactively with customer to try to identify an operational work-around that avoids the defect in the Software. This could include a boot-sequence, or definition of key-commands, mouse commands or other interaction to work-around defects that created the CRITICAL error. 4.1.3.Once an operational work-around has been identified, or in the event that no operational work-around can be identified, APEX personnel will use reasonable commercial effort to reprogram the software to provide relief from the defect in as short a period as possible. CUSTOMER may be required to install non-release software to reinstate operational capability or to assist APEX in diagnosing the problem. 4.1.4.In the event that a software defect has been identified and corrected by means of a non- release software installation (as in 4.1.3), APEX will continue diagnostics and implement a change to the software through a maintenance release within one week.
4.2. SEVERE defects will be diagnosed and corrected within 48 hours of the reported defect.
CUSTOMER may be provided with non-release software to address the issue until the software can be fully tested and/or to assist APEX personnel with testing of the problem. APEX will provide new software which corrects the issue in a maintenance release within two weeks.

4.3. IMPORTANT defects will be diagnosed, corrected, and released with the next scheduled release.

5. APEX shall have no obligation to provide any Benefits, or to correct a defect in the Software for CUSTOMER if:

5.1. CUSTOMER caused the defect by not using the Software in accordance with APEX’s then
current published specifications without the APEX’s permission;
5.2. the defect resulted from CUSTOMER, without APEX’s permission, altering, modifying, or
converting the Software inconsistent with the documentation;

5.3. CUSTOMER’s computer malfunctioned and the malfunction caused the defect in the Software; or

5.4. any other cause within CUSTOMER’s control and not within APEX’s control caused a defect in
the Software.

https://apexturbine.com/software-maintenance-policy/