GENERAL FULFILLMENT TERMS

VIGILENT CORPORATION STANDARD FULFILLMENT TERMS

Introduction. Unless expressly superseded by an existing signed agreement between us, the following terms represent our complete agreement with respect to the fulfillment of your order and related obligations and limitations. Our offerings are systems comprised of equipment, software, firmware and related documentation. We also provide limited installation services and post sales technical support. We purchase our equipment from third parties and develop our own software and firmware for interfacing through industry standard protocols to customary third party systems of our customers. Our quote and your purchase order (or the attached optional schedule) identifies all significant equipment that will be provided to you by us in connection with your order and when. Links to relevant third party manufacturer specifications and open source license terms will be provided upon reasonable request. All software/firmware and related documentation is licensed, not sold, as set forth below. All services will be performed in a good workmanlike manner consistent with any applicable customs and our specifications. If installation services are included, any separate price for them, their scope and timing will be identified in a mutually acceptable writing (typically in our quote). Any post sale technical support services will be governed by our standard support terms as they are adjusted on a reasonable, non-discriminatory basis from time to time. Note: if your purchase order form adequately and accurately identifies all elements of our offerings, their pricing and other relevant terms, there is no need to attach an optional schedule. These terms expressly supersede any inconsistent provisions of your order (including terms and conditions), and your signature below confirms this order of precedence. We refer to our quote, such order form and any optional schedule as “approved order documentation” below.

License. Subject to these terms and payment of the applicable fees, we grant you a nonexclusive and nontransferable license to use the software referred to in the approved order documentation, including related end user documentation, in object code form only; subject to the following limitations:
(i) you will use the software only with the equipment provided by us as installed at the location specified in the approved order documentation;
(ii) you will not transfer, assign, sublicense or distribute the software or these rights to any other person; any attempts to do so are void;
(iii) you will not modify the software or create derivative works based upon the software, nor permit or encourage others to do so; and
(iv) you will not benchmark, decompile, decrypt, reverse engineer, disassemble or otherwise reduce the software to human-readable form, nor permit or encourage others to do so, except as mandated by applicable law after notice.

The duration of this license will be fully paid up or any other time period specified on the approved order documentation. A license issued for a specific time period and any support and maintenance services will be renewed on these same conditions upon invoicing and timely payment. Software includes any upgrades, updates, bug fixes or modified versions (collectively, “Supplements”), related documentation and backup copies of the software provided directly or indirectly pursuant to any separate support and maintenance terms. Upon termination you will return or destroy all copies of the software and certify same upon request. The source code for portions of the software may be available under a public license (the “Public License Files”). The software documentation describes how you may obtain the Public License Files. Any terms offered in this Agreement that apply to the Public License Files are not intended to alter these licensors’ rights. THE SOFTWARE, EQUIPMENT AND SERVICES MUST NOT BE RELIED UPON FOR THE TRANSMISSION OF DATA RELATING TO EMERGENCY, MISSION CRITICAL OR LIFE-THREATENING SITUATIONS OR FOR USE REQUIRING FAILSAFE PERFORMANCE AND OR WHERE FAILURE COULD LEAD TO DEATH, PERSONAL INJURY, OR ENVIRONMENTAL DAMAGE.

Delivery/Acceptance. We will use reasonable efforts to deliver the equipment and/or install it on the date(s) identified in the approved order documentation and you will reasonably cooperate in such efforts. You will participate in the commissioning process to ensure that the systems are operating to our specifications and timely accept them in writing upon our request, or if you decline, you will promptly explain your reasons in writing and allow us a reasonable time to redress any nonconformity. We may then repeat this tender and acceptance process. If you rightfully reject after such remedial efforts, then either of us can elect to cancel/rescind this order without further liability, except that we will promptly remove the installed materials with your cooperation without damage to your facilities and refund any payments made as your exclusive remedy for non-acceptance. You will timely take all steps reasonably necessary to process and secure and maximize any applicable energy rebates, and we will reasonably assist you at your request.

Express Limited Warranty. During our warranty period, we warrant that our system will substantially conform to the specifications set forth in our user documentation. For software, this warranty begins on the date we make the software available for electronic download to you or when we install the software and ends ninety days later. For equipment, this period begins on the date the equipment is received by you (or installed by us if installation services are included) and ends one year later. This limited warranty extends only to you as the original purchaser. Your only remedy and our entire liability (as well as our suppliers) under this limited warranty will be to either repair or replace the equipment or software or to refund of the applicable fees paid for them, the choice or combination at our discretion, provided that the problem is reported to us during the applicable warranty period. This warranty does not apply to equipment or software that: (a) is licensed for beta, evaluation, testing or demonstration purposes; (b) has been altered, except by us; (c) has not been installed, operated, repaired, or maintained in accordance with the relevant documentation (unless we are at fault); or (d) has been used in conjunction with software, accessories, products, services or ancillary or peripheral equipment not supplied by us and the problem is the result of such use and not what we provided. Except for this express limited warranty, our offerings are provided AS IS without any implied warranty. WE EXCLUDE ALL TERMS, CONDITIONS AND WARRANTIES IMPLIED BY LAW, STATUTE OR OTHERWISE. THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICIULAR PURPOSE, MERCHANTIBILITY AND NONINFRINGEMENT ARE EXPRESSLY DISCLAIMED. TO THE EXTENT AN IMPLIED TERM, CONDITION OR WARRANTY CANNOT BE EXCLUDED OR DISCLAIMED, THEN IT IS LIMITED IN DURATION TO THE WARRANTY PERIOD. We do not warrant that our offerings are error free or that you will be able to operate the systems without interruption.

LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND ALWAYS SUBJECT TO (C) BELOW: (A) WE, OUR RESELLERS AND OUR SUPPLIERS EXCLUDE AND DISCLAIM ANY LIABILITY TO YOU AND ANY USER FOR (i) ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, AND (ii) ECONOMIC LOSS, INCLUDING LOSS OF PROFIT (WHETHER DIRECT OR INDIRECT), LOSS OF INCOME, DATA, REVENUE, BUSINESS INTERRUPTION OR COST OF SUBSTITUTE SOFTWARE OR SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE; (B) OUR (INCLUDING OUR RESELLERS’ AND SUPPLIERS’) AGGREGATE LIABILITY TO YOU AND ANY USER IN CONNECTION WITH THIS AGREEMENT OR RELATED TO YOUR USE OF THE SYSTEMS WILL NOT EXCEED THE TOTAL FEES PAID BY YOU TO US IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM OR ACTION AROSE; (C) THE FOREGOING DOES NOT EXCLUDE OR LIMIT OUR LIABILITY IN RESPECT OF BODILY INJURY OR WRONGFUL DEATH ARISING FROM OUR GROSS NEGLIGENCE, FRAUDULENT MISREPRESENTATION OR SUCH OTHER MISCONDUCT THAT CANNOT BE EXCLUDED BY APPLICABLE LAW. DESPITE ANY OTHER PROVISION OF THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW WE (INCLUDING OUR RESELLERS AND SUPPLIERS) HAVE NO LIABILTY (I) DURING ANY EVALUATION, DEMONSTRATION, BETA OR TESTING PERIOD, OR WITH RESPECT TO EQUIPMENT, SOFTWARE AND SERVICES NOT PROVIDED BY US AND (II) FOR EVENTS OR DAMAGES OF ANY NATURE OR KIND RESULTING FROM MISUSE OF THE SYSTEM. NO RESELLER OR SUPPLIER CAN ENLARGE OUR OBLIGATIONS UNDER THIS ORDER NOR RESTRICT THESE LIMITATIONS OF LIABILITY. THE FOREGOING LIMITATIONS ARE REASONABLE IN LIGHT OF THE COST OF ALTERNATIVES. YOU AGREE THAT THE SYSTEMS MUST NOT BE RELIED UPON FOR EMERGENCY, MISSION CRITICAL OR LIFE-THREATENING SITUATIONS WHERE FAILSAFE PERFORMANCE IS NEEDED AND/ OR WHERE FAILURE COULD LEAD TO DEATH, BODILY INJURY, OR ENVIRONMENTAL DAMAGE. VIGILENT IS FREE TO USE YOUR FEEDBACK ON THE OFFERINGS AS WELL AS WHAT VIGILENT LEARNS ABOUT ITS OFFERINGS IN CONNECTION WITH PERFORMING ITS OBLIGATIONS WITHOUT NOTICE, ATTRIBUTION OR COMPENSATION; PROVIDED THAT NO CONFIDENTIAL INFORMATION IS DISCLOSED AND NO IMPLIED PATENT LICENSE IS CREATED. FINALLY, YOU CONFIRM THAT GIVEN THE HIGHLY PROPRIETARY NATURE OF OUR SYSTEMS, YOU WILL NOT BE ABLE, NOR ARE YOU ENTITLED TO TRY, TO REPAIR, COMPLETE OR REPLACE THEM IN THE EVENT OF OUR BREACH OF OUR AGREEMENT. THEREFORE, YOUR ONLY EFFECTIVE REMEDY FOR ANY BREACH (EXCEPT AS SET FORTH IN THE LIMITED WARRANTY ABOVE) IS TO RESCIND THE AGREEMENT AND RECEIVE A REFUND OF ANY FEES PAID TO US WITHIN THE PRECEDING TWELVE (12) MONTH PERIOD.

Export Limitations and U.S. Government Rights. The Software, including related technical data, may be subject to

U.S. export control laws, including the U.S. Export Administration Act and related regulations, and may be subject to export or import regulations in other countries. You agree to comply with all such regulations and acknowledge that it has the responsibility to obtain licenses to export, re-export, or import Software outside the USA. All software is “commercial computer software” as defined in Federal Acquisition Regulation (“FAR”) 2.101. If acquired by or on behalf of a civilian agency, the U.S. Government acquires or will acquire the commercial computer software and/or commercial computer software documentation and other technical data subject to these terms as required in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the FAR and its successors. If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires or will acquire the commercial computer software and/or commercial computer software documentation subject to these terms as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement (“DFARS”) and its successors. This U.S. Government Rights clause is in lieu of and supersedes any other FAR, DFARS or other clause or provision that addresses government rights in computer software, documentation or technical data provided by Vigilent.

Confidentiality. You agree to maintain and reproduce all copyright and other proprietary notices on all copies of the software and documentation. You agree that aspects of the systems, including the specific design and structure of individual programs and issues arising in connection with any support and maintenance services, constitute trade secrets and/or copyrighted material that belongs to us or our licensors. You will not share such trade secrets or copyrighted material in any form with any third party without our prior written consent and will implement reasonable security measures to protect them.

Miscellaneous. CALIFORNIA USA LAW (EXCLUDING ITS CHOICE OF LAW PROVISIONS, THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF FCIS AND THE UNIFORM COMPUTER INFORMATION TRANSACTION ACT AND ANY ADAPTATION OF THIS ACT) GOVERN THIS ORDER AND ANY DISPUTE RELATED TO IT WILL BE RESOLVED IN ANY COURT WITH JURISDICTION LOCATED IN THE SAN FRANCISCO BAY AREA OF CALIFORNIA USA OR BEFORE AN IMPARTIAL ARBITER OF OUR CHOICE. We can elect equitable relief to specifically enforce provisions of this order or to enjoin various violations given the likely inadequacy of damages. The prevailing party in any legal action related to this order is entitled to recover its reasonable attorneys’ and experts’ charges. Late payments bear interest at the rate of one percent per month or any lower legal maximum. All invoices are due net thirty days from the date of invoice and are payable in US dollars unless otherwise specified in the optional schedule. Any taxes due related to these transactions (other than taxes on our net income) are payable by you whether or not separately identified on the invoice. We can elect to invoice electronically and may specify any reasonable form or manner of payment. When you utilize an authorized reseller, (i) you will separately document your financial terms with the authorized reseller, e.g., price and payment terms; (ii) the authorized reseller will contract with us for resale and we will look to the reseller for payment, but can elect to terminate applicable licenses/services in the event of nonpayment by any reseller; and (iii) all other terms (e.g., license, support, etc.) will be governed by this order, if we accept the order. This is our complete agreement with respect to our offerings described in this order and its provisions may only be waived or modified in writing. This order is written and will be construed in standard American English, even if translated into other languages or used in places relying on other languages. (For Canada only: C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais american.) The parties recognize that these terms are intended for use in multiple jurisdictions. Any ambiguities will be clarified in an equitable manner without regard to authorship and minor errors and misspelling will be corrected to give maximal effect to obvious intent. There are no intended third party beneficiaries. At our request from time to time, you will confirm compliance with these terms.

At VIGILENT’s request, Customer will sign and return a copy of this Agreement.