TERMS AND CONDITIONS

Hexaly License and Services Agreement

Please read the terms and conditions of this license and services agreement carefully. By
downloading or using Hexaly Optimizer (“Hexaly Optimizer” and/or the “Software”) on the website
www.hexaly.com or www.localsolver.com (the “Website”), as both terms are further defined
hereunder, the individual and/or the corporate entity referred to in the executed Purchase Order
(the “Client”) of the Licensor (as this term is defined hereunder) accepts the terms and conditions of
this license and services agreement, regardless of whether a Purchase Order has been signed..

THESE STANDARD TERMS, TOGETHER WITH ANY AMENDMENTS, ORDER FORMS, AND ANY
ADDITIONAL AGREEMENTS YOU ENTER INTO WITH THE LICENSOR (“THE LICENSOR”, “WE” OR “OUR”)
IN CONNECTION WITH A PRODUCT AND/OR SERVICE OF THE LICENSOR (COLLECTIVELY, “TERMS”),
EXCLUSIVELY GOVERN YOUR ACCESS TO AND USE OF THE HEXALY SOFTWARE (THE “SERVICE”).
PLEASE READ THEM CAREFULLY BEFORE USING THE SOFTWARE.

BY ACCESSING AND/OR DOWNLOADING OUR SOFTWARE, USING AND/OR ORDERING ANY SERVICE,
YOU WARRANT THAT YOU ARE AUTHORIZED TO DO SO, AND AGREE TO BE BOUND BY THESE TERMS,
REGARDLESS OF WHETHER YOU HAVE CLICKED “AGREED” OR NOT. IF YOU ARE USING THE
SOFTWARE ON BEHALF OF AN ORGANIZATION OR LEGAL ENTITY (“ORGANIZATION”), THEN YOU ARE
AGREEING TO THESE TERMS ON BEHALF OF THAT ORGANIZATION, AND YOU REPRESENT AND
WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ORGANIZATION TO THESE TERMS,
WHETHER OR NOT A PURCHASE ORDER HAS BEEN EXECUTED. IN THAT CASE, “YOU” AND “YOUR”
REFER TO YOU AND THAT ORGANIZATION.

The Licensor and the Client are collectively referred to herein as “Parties” and individually as “Party”.

RECITALS

Hexaly Optimizer is a software that can be used online or downloaded on the Website
offered by the Licensor which publishes mathematical optimization solver allowing business
optimization such as but not limited to finding of vehicle routing, production scheduling, and
workforce scheduling.

Hexaly Optimizer can be used through its modeling language, the Hexaly Modeler (also
known as LSP), or its application programming interfaces in Python, Java, C#, or C++.

This Agreement contains the terms and conditions under which the Licensor agrees to provide to the
Client a License to the Hexaly Software and the Services.

Definitions

The following terms, when written with a capital first letter, either in singular or plural, shall have the
meanings defined in this Article.

“aaS”: means an acronym for “As A Service” referring to the combined hosting and support services
provided in this Agreement.
1
“Account”: means the Client’s, as defined hereunder, on-line space allowing for access to the
Software.

“Agreement”: means the contractual whole comprising these Standard Terms, the Appendix, and the
Purchase Order(s), excluding the Documentation.

“Application”: means an application created by the Client using Hexaly Optimizer which, upon
written agreement by the Licensor, it sublicenses to its customers.

“Base Components” means: the hardware, software, cloud, and/or hosting environment as specified
in the Purchase Order that the Licensor makes available for use by Client as part of the Service.

“Beneficiary”: means the company(ies) or entity(ies) belonging to or affiliated with the Client,
referred to in the Purchase Order and benefiting from the Services and the Software.

“Bypass”: means a procedure or a software modification that circumvents an Error.

“Client Data”: means all data, files, including hypertext markup language files, documents, audio and
visual information, graphics, scripts, programs, applets, or servlets that Client creates, installs,
uploads to or transfers in or through the Software or provides in the course of using the Service,
excluding identification and other information provided by Clients relative to Users.

“Confidential Information”: means any nonpublic data or information, oral or written, treated as
confidential that is disclosed by either party (the “Disclosing Party”) to the other party (the
“Recipient”) relative to the Disclosing Party’s past, present or future research, development or
business activities, including but not limited to the Software, the Services and the Agreement.
Confidential Information shall not be deemed to include information that (i) is publicly available or in
the public domain at the time disclosed, (ii) is or becomes publicly available or enters the public
domain through no fault of the Disclosing Party, (iii) is already in the Recipient’s possession free of
any confidentiality obligations with respect thereto at the time of disclosure. For avoidance of doubt,
the Agreement and the information contained therein, any Documentation provided by the Licensor
to Client that is not public, trade secrets, the operation of the Software or Services, or commercial
information exchanged under the Agreement are Confidential Information.

“Content”: means content material (including but not limited to text, Client-provided software,
scripts, trademarks, logos, HTML coding, domain names, links, graphics, audio, video, and any data)
that Client makes available for use by Users and/or submits to the Licensor via the Software and/or
the Services.

“Correction”: means a software modification that resolves an Error and results in a correction
operation of Hexaly Optimizer.

“Documentation”: means the documentation included in the package downloaded by the Client
from the Website. The Parties agree that the Documentation has no contractual value or legal effect
but a guide as to Hexaly Optimizer.

“Electronic Communications”: means any transfer of signs, signals, text, images, sounds, data or
intelligence of any nature transmitted in whole or part electronically to or from the Service.

2
“Error”: means a reproducible failure of Hexaly Optimizer to conform to its Documentation. In no
event, shall the inability for Hexaly Optimizer to find a feasible solution to a Client input problem
shall be considered an Error.

“License”: means the Academic License and/or the Trial License and/or the Development License
and/or the Production License and/or the Unlimited License granted by the Licensor on Hexaly
Optimizer and its Documentation to the Client. The type of the License (Academic, Development,
Production or Unlimited) is indicated on the Purchase Order signed by the Client. The Client does not
need to sign a Purchase Order for a Trial License.

“License Effective Date”: means (i) for the Academic License and Trial License, the date on which the
Client downloads Hexaly Optimizer on the Website and (ii) for the Development License, Production
License and Unlimited License, the date written on the Purchase Order.

“License Fees”: means the fees indicated on the Purchase Order, paid by the Client in consideration
for the License to the Software and/or the provision of Services.

“License Key”: means the key sent by the Licensor to the Client to allow the Client to use Hexaly
Optimizer according to his type of License.

“License Period”: means the periods indicated in article 7.1 for each type of License.

“Licensor”: means the company granting the license to the Client. It can be Hexaly SAS or Hexaly Inc.
and is identified on the Purchase Order. In absence of Purchase Order, the Licensor is Hexaly SAS
unless you downloaded the Software from the USA or Canada, in which case the licensor is Hexaly
Inc.

“Licensor Domestic Courts”: means the courts of the city where the Licensor has its registered office:

• Paris courts, France, if the Licensor is Hexaly SAS.

• state and federal courts located in New York, New York, if the Licensor is Hexaly Inc.

“Licensor Governing Laws”: means the laws of the Licensor state/country

• French Law, if the Licensor is Hexaly SAS.

• New York law and controlling U.S. federal law, if the Licensor is Hexaly Inc.

“Licensor Interest Rates”: means the interest applicable to late payments:

• 3 times the legal interest rate in force and a fixed sum of 40 euros as compensation for
recovery costs pursuant to Article L. 441-3, al 4 and L. 441-6, al 12 of the French Commercial
Code, if the Licensor is Hexaly SAS.
• the lesser of 1.5% per month or the maximum rate allowed by law, if the Licensor is Hexaly
Inc.

“Licensor Regulations”: means the applicable regulations relative to personal and confidential data:

• The French data protection law n°78-17 of 6 January 1978 where applicable, the directive
2002/58/CE of the European Parliament and of the Council of 12 July 2002, the Regulation

3
 (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the
protection of natural persons with regard to the processing of personal data and on the free
movement of such data ("the General Data Protection Regulation"), if the Licensor is Hexaly
SAS.
• any United States Privacy Law, including the Californian Consumer Privacy Act on the
protection of natural persons with regard to the processing of personal data and on the free
movement of such data, if the Licensor is Hexaly Inc.

“Hexaly Optimizer”: means the software used or downloaded by the Client on Website. Hexaly
Optimizer was previously known as “LocalSolver”. All versions of Hexaly Optimizer are covered by
these terms and conditions regardless of the brand name under which they are published.

“Purchase Order”: means the purchase order issued by the Licensor and signed by the Client to order
a License acquired for valuable consideration and the Services if needed. The Purchase Order
indicates the type of License, the License Fees, and the License Period. Even if not signed by the
Client, the use and/or the payment of the License constitutes acceptance of the Purchase Order.

“Services”: means the maintenance and support services provided by the Licensor to the Client
according to Article 5 and specified in a Purchase Order.

“Services Days”: means the days during which the Services will be available for the reporting of
Errors, from Monday to Friday, during French working days, from 8:00 AM to 10:00 PM UTC Time
(“Services Hours”) from 2nd January to 24th December of each year.

“Software”: means the software called Hexaly Optimizer, used or downloaded from the Website
which may be integrated by our Clients in Client based and created applications, upon written
agreement by the Licensor, and/or used as such, by Clients for internal purposes. Clients input data
into the Software’s optimization solver in order to get applicable output regarding business related
issues such as vehicle routing, production scheduling, and workforce scheduling, based on the
Software’s innovative modeling APIs and solving algorithms.

“Standard Terms”: means these standard terms.

“Third Party Vendors”: means service provider outside of the Licensor

“User”: means the individual(s) authorized by the Client or the Beneficiaries who rely on the
Software and use the Services and have been supplied user identifications and passwords by Client or
on Client’s behalf pursuant to the applicable Purchase Order.

Unless the context otherwise requires, the terms and definitions used in the singular form refer to
the plural form and conversely.

Article 1 – Purpose

This Agreement sets forth the terms and conditions under which the Licensor agrees to grant to the
Client the License to the Software and to perform the Services.

Article 2 – Services

4
The Licensor agrees to provide Client, the Beneficiaries, and the Users access to the Software and/or
Service. Specific License and/or components of the Service to be provided to Client are as outlined in
the applicable Purchase Order and Documentation pursuant to the terms herein. The Services and
the Software shall be standard, shall be accessible from a remote location (provided that this location
is not in an embargoed or sanctioned country) and shall not require any services so that they can be
integrated into the IT systems of the Client or the Beneficiaries, unless otherwise set forth in an
applicable Purchase Order for the supply of specific services. The Parties agree and acknowledge that
the Software shall operate in accordance with the following features: (i) access shall be provided
twenty-four (24) hours a day, seven days a week, and the Licensor shall make reasonable efforts to
ensure availability, subject to any testing or installation phase, and further subject to any
interruptions required for the repair and technical maintenance of the hardware or software; (ii)
depending on the applicable License set forth hereunder, the licensor shall provide the License Key to
ensure Users accessing the Software obtain an access code, conditioned upon Client’s performance
of its obligation under any Purchase Order and/or these Standard Terms and the different types of
licenses as provided in Article 4, (iii) the licensor may change its hardware or software environment,
and (iv) If Client must issue its own purchase order, Client hereby acknowledges and agrees that it
shall be authorized to do so solely to comply with its own internal business purposes, such as
validation for internal systems, and this Agreement and/or the Licensor’s Purchase Order(s) shall
prevail over all other documents, including but not limited to prospectuses, catalogues, and Client’s
own terms and/or purchase order(s), as to terms and conditions of sale of the Software and/or
Services.

Article 3 – Licenses

3.1 There are four different types of Licenses:

3.1.1 “Academic License”:

The Academic License is limited to Client’s using the Software for education and research
purposes only and comes with absolutely no warranty.

The Client must be an entity specialized in education and research in order to benefit from the
Academic License.

The Client requests an Academic License on the Website, and the Licensor decides, in its
discretion, whether it shall grant such Academic License to the Client based on a number of
objective criteria, namely the teaching mission of the Client and its non-profit research activity.

The Academic License is free when limited to 1 computer and 1 concurrent User. For other
usages, License Fees shall be paid by the Client to the Licensor. The License Key will be sent to
the Client after receipt of the Purchase Order by the Client and payment of the License Fees.

Any commercial use is strictly prohibited. Only strictly personal use is authorized. Using the Software
(whether for a fee or not) for the benefit of any other entity is forbidden to the Client regardless of
the commercial or noncommercial nature of this entity.

3.1.2 “Trial License”:

5
 A time-limited free Trial License can be granted by the Licensor on demand, at the Licensor’s
discretion, for a specified period. A Trial License is limited to Clients using the Software for
evaluation purposes only and comes with absolutely no warranty.

Any commercial use or exploitation of the results obtained with the Software is strictly
prohibited.

3.1.3 “Development License”:

A Development License is granted by the Licensor for use of the Software for development
purposes only. For purposes of this Agreement, to “develop” means to model optimization
problems by using the Hexaly Modeler or its application programming interfaces (namely Python,
Java, C#, or C++ APIs), then to produce results by running Hexaly Optimizer on data submitted by
Clients for testing and evaluation purposes. Clients may not exploit these results for business or
industrial purposes.

License Fees shall be paid by the Client to the Licensor pursuant to the Article entitled Fees. The
License Key shall be sent to the Client after receipt of the executed Purchase Order by the Client
and payment of the License Fees set forth therein.

3.1.4 “Production License”:

A Production License is granted by the Licensor to exploit results produced by this Software for
Client’s business or industrial use.

The integration of Hexaly Optimizer inside an Application is performed solely by the Client, under
its own responsibility. Once Hexaly Optimizer is integrated into an Application, Hexaly Optimizer
will be used as part of its functionalities by the Client’s end-users and never as a standalone
software product.

License Fees shall be paid by the Client to the Licensor pursuant to the Fees Article herein. The
License Key will be sent to the Client after receipt of the Purchase Order signed by the Client and
payment of the License Fees.

3.1.5 “Unlimited License”:

An Unlimited License is granted by the Licensor for development and production use as defined
in section 3.1.3 and 3.1.4, respectively.

License Fees shall be paid by the Client to the Licensor pursuant to the Fees Article herein. The
License Key will be sent to the Client after receipt of the Purchase Order signed by the Client and
payment of the License Fees.

3.2 Conditions for all types of Licenses:

Subject to the terms and conditions of this Agreement, the Licensor hereby grants a personal, non-
exclusive, non-assignable and non-transferable worldwide right to use and operate (i) Hexaly
Optimizer, on its own, as accessible through the Account, (ii) the aaS Materials solely in connection

6
with the Service and Hexaly Optimizer, all solely according to the type of License granted, and (iii) any
part of the Services protected by an intellectual property right, only for the purpose of operation on
the proper functioning of the Software, during the entire Term of the Agreement.
Notwithstanding anything to the contrary herein, the Licensor may grant Clients, in its own
discretion, the right to sublicense the Software as integrated in an Application to Clients’ own
customers. At no time, shall Clients ever be authorized to sublicense the Software to be used on its
own. In this context, the Client agrees that only duly authorized persons including the Beneficiaries
and Users shall have access to the Services and Hexaly Optimizer, and that all instructions or queries
received by the Client, any User or any Beneficiary shall originate from a person authorized to bind
the Client.
The Client is alone responsible for any use of the Account(s), Hexaly Optimizer __on its own and/or
as integrated in any Applications by Clients’ customers__ and the Services, and the Client agrees to
bear any and all consequences arising from the use of the Services or Hexaly Optimizer, whether by
itself or by any Beneficiary, User or third party using the Account(s) and/or an Application.
The Client shall be responsible for ensuring that the Beneficiaries and Users comply with the terms of
the license and the Agreement.
The Client, the Beneficiaries and the Users are authorized to use the Services and Hexaly Optimizer
only in relation to the data owned by them or to any personal data in respect of which they are
acting as data processors.
Unless expressly authorized in writing by the Licensor, the Client shall not – and shall not authorize
any Beneficiary, User or third party to –
(i) enable any third party not expressly authorized by the Licensor to access the Services or Hexaly
Optimizer, sublicense, sell, translate, loan, lease, distribute or use the Services or the Hexaly
Optimizer, providing any (direct or indirect) access to the Services or to the Hexaly Optimizer or using
the Services or Hexaly Optimizer under any time-share arrangement and/or as otherwise permitted
herein;
(ii) create any derivative works or access the Services or Hexaly Optimizer in order to develop any
product or service, whether competing or not, or to copy any material, function or graphics of the
Services or the Hexaly Optimizer;
(iii) retro-engineer, decompile, disassemble, reverse translate, seek to remove or circumvent any of
the devices of the Services or Hexaly Optimizer, or seek to rebuild or discover the related source
code;
(iv) remove any material allowing for the identification of any copyrights or trademarks or any other
indication pertaining to protected rights,
(v) Client shall not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource,
disclose or otherwise commercially exploit or make the Service, Hexaly Optimizer, or the aaS
Materials available to any third party other than an authorized;
(vi) Client shall not create Internet "links" to the Service or Hexaly Optimizer or "frame" or "mirror"
any part of the Service or Hexaly Optimizer, including any content contained in the Service or Hexaly
Optimizer, on any other server or device;
(vii) except as expressly stated herein, no part of the Service or Hexaly Optimizer or aaS Materials
may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted
in any form or by any means, including but not limited to electronic, mechanical, photocopying,
recording, or other means;
(viii) Client agrees to make every reasonable effort to prevent unauthorized third parties from
accessing the Service or Hexaly Optimizer;
(ix) Client acknowledges and agrees that the Licensor or its Third Party Vendors shall own all right,
title and interest in and to all intellectual property rights in the Service, the Hexaly Optimizer, and the
aaS Materials and any suggestions, enhancement requests, feedback, or recommendations provided
by Client or its beneficiaries or Users relating to the Service, Hexaly Optimizer, or the aaS Materials,

7
including all unpatented inventions, patent applications, patents, design rights, copyrights,
trademarks, service marks, trade names, know-how and other trade secret rights, and all other
intellectual property rights, derivatives or improvements thereof;
(x) unauthorized use, resale or commercial exploitation of any part of the Service, Hexaly Optimizer,
or aaS Materials in any way is expressly prohibited;
(xi) Client does not acquire any rights in the Service, Hexaly Optimizer, or aaS Materials, express or
implied, other than those expressly granted in this Agreement and all rights not expressly granted to
Client are reserved by the Licensor and Third Party Vendors ; and
(xii) this Agreement is not a sale and does not convey any rights of ownership in or related to the
Service, Hexaly Optimizer, Software, or aaS Materials to Client.
In addition, when using Services and Hexaly Optimizer, the Client, the Beneficiaries and the Users
agree not to upload, download, publish, send or circulate in any manner whatsoever any materials or
contents: breaching, whether intentionally or not, any applicable law or regulation; breaching any
rights of third parties, including any intellectual property rights or personality rights; likely to
damage, disable, overload or impair the Services or Hexaly Optimizer or any server or networks
connected to the Services or to Hexaly Optimizer, or to breach any requirements, procedures, rules
or regulations of the networks connected to the Services

3.3 Account

An Account shall be created (i) by the Licensor at the request of the Client or any Beneficiary or User
or (ii) by the Client or any Beneficiary or User by using the form accessible on the Website.
The various steps to be taken to open an Account are detailed in the said form. Prior to approving
such form, the Client may check the supplied information and correct any misstatements and shall
receive, as soon as practicable an email confirming receipt of such form.
After verification of the supplied information, the Licensor shall send Electronic Communications
containing the License Key and connection data allowing for access to the created Account.
The Client agrees not to use its connection data for any purposes other than in order to use the
Services and Hexaly Optimizer under the applicable License so granted and to take any step
necessary in order to protect the confidential and secure use of its connection data, in particular by
avoiding to disclose or make them available to any third party.
The Client shall also be responsible for protecting the confidentiality and security of the Account(s),
and where applicable any Accounts of the Beneficiaries and Users, e.g., by regularly changing the
relevant passwords. If the Client or any Beneficiary or User has any grounds for considering that its
connection data (and in particular its identifiers and passwords) have been lost, stolen, or
compromised in any manner whatsoever, or in case of unauthorized use of any Account, the Client
shall immediately inform the Licensor by any means of the relevant event.
In such case, the Client authorizes the Licensor to take any necessary steps to protect the security of
the Account, e.g., by resetting the passwords or temporarily suspending access to the Services and to
Hexaly Optimizer.
Absent any such notice, any use of the Account, Hexaly Optimizer and the Services shall be deemed
to originate from the Client.
The Client shall hold all rights in and to any contents created or generated on its Account in relation
to its conformance with the Licensor Regulation (excluding the format or structure of the same as
resulting from the Hexaly Optimizer).
The Licensor shall record and retain any Content created or generated on the Account, it being
understood that the Client shall be solely responsible for any deletion or modification of such
Content by the Client or by any Beneficiary or User on its Account.

8
Article 4 – License Fees

4.1 In consideration for the Services and use of Hexaly Optimizer, the Client agrees to pay to the
Licensor the amounts specified in the Purchase Order in accordance with the terms set out therein.
Invoices shall be sent to Client at the address set forth in the Purchase Order and shall be payable
upon receipt. In addition to any remedies the Licensor may have pursuant to this Agreement or at
law for non-payment, delinquency in payment may result in a delay or suspension of the right to use
Hexaly Optimizer and/or Service.
In addition, if Client does not make payment when due, in addition to the Licensor’s rights herein,
the Licensor may charge interest on the unpaid amount at Licensor Interest Rate. In the event the
Licensor incurs any costs (including reasonable attorney’s fees) from efforts collecting overdue fees
from Client, Client agrees to pay such costs. Client further agrees to pay all foreign, federal, states,
and local taxes, if applicable, to Client’s access to, use, or receipt of the Service and/or Hexaly
Optimizer.

License Fees shall be paid by the Client to the Licensor in order to receive the License Key for a
License.

4.2 The Academic License is free when limited to 1 User computer and 1 Beneficiary concurrent use.

4.3 The Trial License is free.

Article 5 – Description of Services

5.1 For free Licenses, the Services are not available. Licenses purchased through a Purchase Order,
i.e., for which Client shall pay Licensor, shall benefit from the Services which shall be set forth in the
applicable Purchase Order. In consideration of the Fees paid by Clients under such applicable
Purchase Order, the Licensor agrees to provide Client, the Beneficiaries, and the Users access to
Hexaly Optimizer and/or Service. Specific components of the Service to be provided to Client are as
outlined in the applicable Purchase Order and Documentation.

5.2 The Licensor shall, during the License Period and subject to the payment by the Client of the
License Fees, make any reasonable commercial effort to correct or circumvent possible Errors
identified by the Client, and notified by the Client to the Licensor, in the latest release of Hexaly
Optimizer.

The Services and Hexaly Optimizer shall be standard, shall be accessible from a remote location
(provided that this location is not in an embargoed or sanctioned country) and shall not require any
services so that they can be integrated into the IT systems of the Client or the Beneficiaries, unless
otherwise set forth in an applicable Purchase Order for the supply of specific services. The Parties
agree and acknowledge that the Licensor may change its hardware or software environment.

The Licensor shall not have to furnish Correction or Bypass on Hexaly Optimizer if Hexaly Optimizer is
modified by the Client or by a third party unless the Licensor has given prior written agreement to
integrate such modifications.

9
5.3 The Client shall notify the Licensor of an Error by email sent to the Licensor at the following
address: [email protected]. Such notification shall only be made by the Client. Support will be
initiated at most 24 Services Hours after receiving his email.

The Client is responsible for providing any input and output data necessary for the reproduction of
the Error.

5.4 The Licensor may but shall not be obligated to, during the License Period and subject to the
payment by the Client of the License Fees, furnish the Client with some updates and some upgrades
of Hexaly Optimizer, such as new releases of the software which correct bugs and add capabilities to
Hexaly Optimizer.

Article 6 – Warranty and Limitation of Liability

6.1 Warranty of Functionality

The Licensor warrants to Client during the License Period that Hexaly Optimizer and Service will
comply with the material functionality described in the aaS Materials and Documentation and that
such functionality will be maintained in all material respects in subsequent upgrades to the Service.
Client’s sole and exclusive remedy for the Licensor’s breach of this warranty shall be that the Licensor
shall use commercially reasonable efforts to correct such Errors or modify Hexaly Optimizer and/or
Service to achieve the material functionality described in the aaS Materials within a reasonable
period of time. However, the Licensor shall have no obligation with respect to this warranty claim
unless notified of such claim within (30) days of the first material functionality problem. Further, the
Licensor shall have no obligation with respect to this warranty claim, and Client may not terminate
the Agreement, where any alleged nonconformity is due to User error as reasonably determined by
the parties after investigation and analysis by the Licensor. The Licensor does not warrant that the
Service and/or Hexaly Optimizer will be free of non-material Errors, bugs, or minor interruption, or
that all such Errors will be corrected.

6.2 DISCLAIMER OF WARRANTIES

EXCEPT AS OTHERWISE STATED IN THIS ARTICLE, THE LICENSOR DOES NOT REPRESENT THAT
CLIENT’S USE OF HEXALY OPTIMIZER AND SERVICE WILL BE SECURE, TIMELY, UNINTERRUPED OR
ERROR FREE, OR THAT HEXALY OPTIMIZER OR SERVICE WILL MEET CLIENT REQUIREMENTS OR THAT
ALL ERRORS IN THE SERVICE AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE SYSTEM
THAT MAKES HEXALY OPTIMIZER OR SERVICE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER
HARMFUL COMPONENTS OR HEXALY OPTIMIZER OR SERVICE WILL OPERATE IN COMBINATION WITH
OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY THE LICENSOR OR THE
OPERATION OF HEXALY OPTIMIZER OR SERVICES WILL BE SECURE OR THAT THE LICENSOR AND ITS
THIRD PARTY VENDORS WILL BE ABLE TO PREVENT THIRD PARTIES FROM ACCESSING CLIENT DATA
OR CLIENT’S CONFIDENTIAL INFORMATION, OR ANY ERRORS WILL BE CORRECTED OR ANY STORED
CLIENT DATA WILL BE ACCURATE OR RELIABLE. THE WARRANTIES STATED IN THIS ARTICLE ARE THE
SOLE AND EXCLUSIVE WARRANTIES OFFERED BY THE LICENSOR. THERE ARE NO OTHER WARRANTIES
OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS STATED HEREIN, HEXALY
OPTIMIZER AND SERVICE IS PROVIDED TO CLIENT ON AN “AS IS” AND “AS AVAILABLE” BASIS AND IS
SOLELY FOR USE AS INDICATED ABOVE. CLIENT ASSUMES ALL RESPONSIBILITY FOR DETERMINING
WHETHER HEXALY OPTIMIZER AND SERVICE OR THE INFORMATION GENERATED THEREBY IS
ACCURATE OR SUFFICIENT FOR THE CLIENT’S PURPOSE. CLIENT ASSUMES ALL RESPONSIBILITY FOR
ANY DECISION TAKEN BASED ON THE RESULTS OBTAINED WITH THE SOFTWARE.

10
6.3 LIMITATIONS OF LIABILITY
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR EXEMPLARY, PUNITIVE, SPECIAL,
INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES INCLUDING WITHOUT LIMITATION,
INTERRUPTION OF BUSINESS, LOST PROFITS, LOST OR CORRUPTED DATA OR CONTENT, LOST
REVENUE ARISING OUT OF THIS AGREEMENT (INCLUDING WITHOUT LIMITATION HEXALY OPTIMIZER
AND/OR SERVICE, THE USE OF HEXALY OPTIMIZER AND/OR SERVICE OR THE INABILITY TO USE
PLATFORM AND/OR SERVICE), EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.

6.4 DIRECT DAMAGE LIMITATIONS

6.4.1 IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE LICENSOR OR ANY THIRD PARTY
VENDORS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING ANY LICENSE,
USE, OR OTHER EMPLOYMENT OF THE SERVICE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM
BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, TORT, OR OTHERWISE,
EXCEED THE TOTAL AMOUNTS ACTUALLY PAID BY CLIENT IN THE AMOUNT EQUIVALENT TO 80% OF
THE TOTAL ANNUAL PAYMENT FOR THE YEAR PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
THERE SHALL BE ONLY ONE AGGREGATE LIABILITY CAP UNDER THIS AGREEMENT EVEN IF THERE ARE
MULTIPLE CLAIMS; EACH CLAIM SHALL REDUCE THE AMOUNT AVAILABLE IN THE AGGREGATE
LIABILITY CAP.

6.4.2 THE LICENSOR SHALL NOT BE LIABLE FOR ANY DAMAGES RESULTING FROM THE LOSS OR
CORRUPTION OF ANY DATA OR CONTENT WHETHER RESULTING FROM DELAYS, NONDELIVERIES,
MISDELIVERIES, SERVICE INTERRUPTIONS OR OTHERWISE.

6.4.3 EXCLUSIONS
THE LIMITATIONS OF LIABILITY SET FORTH IN THIS ARTICLE SHALL NOT APPLY WITH RESPECT TO: (I)
DAMAGES TO PERSONS AND/OR TANGIBLE PROPERTY OCCASIONED BY THE WILLFUL MISCONDUCT
OR GROSS NEGLIGENCE OF A PARTY, (II) BREACHES BY CLIENT OF LICENSE TERMS APPLICABLE TO THE
LICENSOR, AND (III) CLIENT’S UNAUTHORIZED USE OF THE LICENSOR’S OR THIRD PARTY THE
LICENSOR’S INTELLECTUAL PROPERTY, MATERIALS OR ASSETS. DAMAGES AS LIMITED BY THIS
ARTICLE ARE CLIENT’S SOLE AND EXCLUSIVE REMEDY IF ANOTHER REMEDY IS PROVIDED AND SUCH
REMEDY IS DEEMED TO FAIL OF ITS ESSENTIAL PURPOSE.

Article 7 – Term and Termination

7.1 License Period

7.1.1 The Academic License is granted by the Licensor for a 30-day period from the License Effective
Date.

7.1.2 The Trial License is granted by the Licensor for a 30-day period from the License Effective Date.

7.1.3 The Development License and/or the Production License and/or the Unlimited License are
granted by the Licensor from the License Effective Date defined in the Purchase Order for a term set
forth therein (“Initial Term”). If the Initial Term is less than three (3) months, the Agreement shall
terminate at the end of the Initial Term. If the Initial term is three (3) months or more, the following
shall apply:

11
 i. 45 days prior to the expiration of an Initial Term and/or any renewal for a period of
the same duration (a “Renewal Term”), the Licensor shall notify Client of the License
Fee to be applied to the Renewal Term, if different from the License Fee of the Initial
and/or previous Term. The Initial Term and any Renewal Term shall be referred to
collectively as the “Term”;
ii. Client may terminate the Agreement in writing with a minimum of 30-day notice
before expiration date of the Term, otherwise the Agreement shall automatically
renew for a period of the same duration and subject to all terms and conditions of
the Agreement, but for the amount of any applicable License Fees.

Notwithstanding anything to the contrary herein, Client may not terminate the Agreement prior to
its expiration date unless terminated as provided in this Section. Any expiration or termination as set
forth herein shall have no force or effect on any obligation that, due to its nature, is to survive
expiration or termination, and in particular any clauses related to liability, confidentiality, governing
law and jurisdiction.

7.2 Term of Services

The Services for applicable License types shall commence on the License Effective Date and shall
remain into effect for the period defined in the Purchase Order.

7.3 Suspension and Termination of the Agreement

The Licensor reserves the right to suspend Client’s access and/or use of the Service and/or Hexaly
Optimizer for any account for which any payment is due but remains unpaid after thirty day’s written
notice of such delinquency. Client agrees that the Licensor shall not be liable to Client, or to any third
party, for any suspension of the Service and/or access to Hexaly Optimizer resulting from Client’s
non-payment of the Fees as described in this Article.

Client agrees that the Licensor may, with reasonably contemporaneous telephonic or electronic mail
notice to Client, suspend Client’s access to the Service if the Licensor reasonably concludes that
Client’s use of the Service and/or Hexaly Optimizer is causing immediate and ongoing harm to the
Licensor or others. The Licensor will use commercially reasonable efforts to resolve the issues
causing the suspension of Service and/or access to Hexaly Optimizer. Client agrees that the Licensor
will not be liable to Client or to any third party for any suspension of the Service and/or access to
Hexaly Optimizer under such circumstances as described in this Article.

The Licensor may terminate this Agreement upon thirty (30) days’ written notice to the Client in the
event of a breach of any material obligation under this Agreement, provided that the alleged breach
is not cured during the thirty (30) day notice period. Upon termination or expiration of this
Agreement, Client shall have no rights to continue use the Service and/or access Hexaly Optimizer.

Client acknowledges and agrees that following termination of this Agreement, the Licensor may
request that Client return all aaS Materials (except that it may retain a copy for archival purposes or
as otherwise provided in this Agreement) to the Licensor and the Licensor may immediately
deactivate Client’s account. Client agrees that the licensor shall not be liable to Client or to any third
party for any termination of Client access to the Service or deletion of Client Data, provided that the
licensor is in compliance with the terms of this Article. Notwithstanding the foregoing, nothing shall
preclude the licensor from maintaining one copy of Client Data if required by law.

12
The provisions of Articles 6, 7, 8, and 10 shall survive the termination of this Agreement for any
reason.

Article 8 – Governing Law – Dispute Resolution

Any action related to this Agreement will be governed by the Licensor Governing Law. No choice of
law rules of any jurisdiction will apply. Any disputes, actions, claims, or causes of action arising out of
or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of
the Licensor Domestic Courts. This Agreement, together with the Purchase Order and Appendix
annexed hereto, represent the Parties’ entire understanding relating to the use of Hexaly Optimizer
and Service and supersedes any prior or contemporaneous, conflicting, or additional,
communications. No text or information set forth on any Purchase Order Form, preprinted form or
document shall add to or vary the terms and conditions of this Agreement. If any provision of this
Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such
provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or
unenforceable provision(s), with all other provisions remaining in full force and effect. No joint
venture, partnership, employment, or agency relationship exists between the Licensor and Client as a
result of this Agreement or use of Hexaly Optimizer or Service. Any rights not expressly granted
herein are reserved by the Licensor.

Article 9 – Terms of Service

9.1 Service Extensions or Updates

Client further agrees that, unless explicitly stated otherwise, any new features that augment or
enhance Hexaly Optimizer and/or Service, and or any new service subsequently purchased by Client
pursuant to an amendment accepted by the Licensor referencing this Agreement and/or the
Purchase Order will be subject to this Agreement.

9.2 Client Must Have Internet Access

In order to use Hexaly Optimizer and/or Service, Client must have or must obtain access to the World
Wide Web, either directly or through devices that access Web-based content. Client must also
provide all equipment necessary to make (and maintain) such connection to the World Wide Web in
accordance with the requirements set out in the aas Materials.

9.3 Email and Notices

Client agrees to provide the Licensor with Client’s e-mail address (es), and to accept emails (or other
Electronic Communications) from the Licensor at the e-mail address Client specifies. Notwithstanding
any provision in the Agreement to the contrary, acknowledgement by an officer of Client is not
required with respect to e-mail communications pertaining to the Client’s routine use of the Service,
including without limitation communications relating to the support, maintenance, or the updating
of Hexaly Optimizer and/or Service. Client further agrees the Licensor may provide any and all
required notices including legal notices to Client through either e-mail (or other electronic
transmission), or by mail.

9.4 Client’s Responsibilities

Client agrees to comply with all applicable local, state, national and foreign laws, treaties,
regulations, and conventions in connection with its use of Hexaly Optimizer and/or Service, including
without limitation those related to data privacy, international communications, and the exportation
of technical or personal data.
Client will ensure that any use of Hexaly Optimizer and/or Service by Client’s Users and/or
Beneficiaries is in accordance with the terms of this Agreement. Client agrees to notify the Licensor
13
immediately of any unauthorized use of any password or account or any other known or suspected
breach of security or any known or suspected distribution of Client Data.
Client acknowledges and agrees that Hexaly Optimizer and/or Service is subject to the U.S. Export
Administration Laws and Regulations.
Client agrees that no part of Hexaly Optimizer and/or Service or information obtained through use of
Hexaly Optimizer and/or Service, is being or will be acquired for, shipped, transferred, or re-
exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor be used
for nuclear activities, chemical biological weapons, or missile projects unless authorized by the U.S.
Government. Proscribed countries are set forth in the U.S. Export Administration Regulations and are
subject to change without notice, and Client must comply with the list as it exists in fact. Client
certifies that neither Client nor any Users are on the U.S. Department of Commerce's Denied Persons
List or affiliated lists or on the U.S. Department of Treasury's Specially Designated Nationals List.
Client agrees to comply strictly with all U.S. export laws and assumes sole responsibility for obtaining
licenses to export or re-export as may be required. Any unauthorized use of Hexaly Optimizer and/or
Service may violate copyright laws, trademark laws, the laws of privacy and publicity, and
communications regulations and statutes. The Service may use encryption technology that is subject
to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774.
In addition to its responsibilities in this Agreement, Client is responsible for all Client responsibilities
indicated in the Purchase Order attached hereto or entered into pursuant hereto and all other
responsibilities not designated as responsibilities of the Licensor.

Client shall not resell access to Hexaly Optimizer and/or Services directly or indirectly to third parties.

9.5 Transmission of Data

Client understands that the technical processing and transmission of Client’s Electronic
Communications is fundamentally necessary to Client’s use of Hexaly Optimizer and/or Service. Client
expressly consents to the Licensor’s interception and storage of Electronic Communications and/or
Client Data, and Client acknowledges and understands that Client’s Electronic Communications will
involve transmission over the internet, and over various networks, only part of which may be owned
and/or operated by the Licensor. Client acknowledges and understands that changes to Client’s
Electronic Communications may occur in order to conform and adapt such data to the technical
requirements of connecting networks or devices. Client further understands that Electronic
Communications may be accessed by unauthorized parties when communicated across the Internet,
network communications facilities, telephone, or other electronic means. Client agrees that the
Licensor is not responsible for any Electronic Communications and/or Client Data which are lost,
altered, intercepted, or stored without authorizations during the transmission of any data
whatsoever across networks not owned and/or operated by the Licensor.

9.6 Confidential Information

Each Party may have access to information that is confidential to the other party (“Confidential
Information”). For purposes of this Agreement, Confidential Information shall include any
information that is clearly identified in writing at the time of disclosure as confidential as well as any
information that, based on the circumstances under which it was disclosed, a reasonable person
would believe to be confidential.
Client’s Confidential Information shall include, but not be limited to, Client Data.
A party’s Confidential Information shall not include information that (i) is or becomes a part of the
public domain through no act or omission of the other party; (ii) was in the other party’s lawful
possession prior to the disclosure without any obligation of confidentiality and had not been
obtained by the other party either directly or indirectly from the disclosing party; (iii) is lawfully
disclosed to the other party by a third party without restriction on disclosure; (iv) is independently

14
developed by the other party without use of or reference to the other party’s Confidential
Information, as established by written records.
The parties agree to use commercially reasonable efforts not to make each other’s Confidential
Information available in any form to any third party. Notwithstanding the foregoing, Client
acknowledges and agrees that the Licensor may disclose Client’s Confidential Information to its
Third-Party Vendors solely to the extent necessary to provide products or services under this
Agreement. This Article will not be construed to prohibit disclosure of Confidential Information to the
extent that such disclosure is required by law or valid order of a court or other governmental
authority; provided, however, that a party who has been subpoenaed or otherwise compelled by a
valid law or court order to disclose Confidential Information (the “Responding Party”) shall first have
given sufficient and prompt written notice to the other party of the receipt of any subpoena or other
request for such disclosure, so as to permit such party an opportunity to obtain a protective order or
take other appropriate action. The Responding Party will cooperate in the other party's efforts to
obtain a protective order or other reasonable assurance that confidential treatment will be afforded
the Confidential Information. If the Responding Party is compelled as a matter of law to disclose the
Confidential Information, it may disclose to the party compelling the disclosure only that part of the
Confidential Information as is required by law to be disclosed.

9.7 Transfer and Outsourcing

The Client shall not transfer in any way this Agreement to any third party.

The Licensor may transfer in any way this Agreement on the condition that the Client is informed by
the Licensor prior to the transfer.

Article 10 -Intellectual property

Client acknowledges and agrees that Hexaly Optimizer and Service and any necessary software used
in connection with Hexaly Optimizer and the Services contains proprietary and confidential
information that is protected by applicable intellectual property and other laws. Client further
acknowledges and agrees that the content or information presented to the Client through Hexaly
Optimizer and/or the Services may be protected by copyrights, trademarks, service marks, patents or
other proprietary rights and laws. The user license is granted to the Client only in strict compliance
with the terms of the Agreement and shall not operate any transfer of intellectual property rights in
or to the Services or Hexaly Optimizer. The organization, structure, sequences, logic, and source code
of such materials are trade secrets. Such materials and any copies and parts thereof, as well as any
improvements, modifications and derivative works, and any intellectual property rights therein, are
and shall remain the Licensor’s exclusive property as well. Except where expressly provided
otherwise by the Licensor, nothing in Hexaly Optimizer, the Software, the Services, the aaS Materials,
or the Agreement shall be construed to confer any license to any of the Licensor's (or its third-party
manufacturer’s, author’s, developer’s, the Licensor’s, and Third-Party Vendors, intellectual property
rights, whether by estoppel, implication, or otherwise. The Licensor reserves the right to subcontract
any or all services provided hereunder to third parties.

Article 11 – Client’s Indemnity

Client shall defend and indemnify the Licensor and its Third-Party Vendors against any and all Losses
incurred by the Licensor and its Third-Party Vendors arising out of or in connection with a claim by a
third party (i) alleging that the Client Data or the Client Trademarks, or any use thereof, infringes the

15
rights of, or has caused harm to, a third party, or (ii) arising out of Client’s breach of this Agreement.
Client will indemnify, defend, and hold harmless the Licensor, its affiliates, successors, and assigns,
including the applicable officers, directors, employees, and agents thereof for damages, costs and
attorneys’ fees the Licensor incurs from any unaffiliated third-party claim arising from Client’s
Content or Client’s or Beneficiary’s use of the Services.

Article 12 – Miscellaneous Provisions

12.1 Force Majeure

Neither party will be liable to the other for any failure or delay in the performance of such party’s non-
monetary obligations due to causes beyond its control, such as failure or delay caused, directly or
indirectly, by fire, flood, earthquakes, other elements of nature, acts of war, terrorism, riots, civil
disorders, rebellions or revolutions, epidemics, government orders of quarantine, communications line
or power failures, or governmental laws, court orders, and regulations imposed after the fact.

12.2 Contents of the Agreement

Should any provision of the Agreement be held unlawful or unenforceable, prohibited, or invalid,
whether in whole or in part under applicable laws, such provision shall be disregarded only to the extent
of its invalidity, and this shall not invalidate the remaining part of the said provision or the other
provisions of the Agreement.

12.3 Waivers
The failure of the Licensor to enforce any right or provision in this Agreement and/or Purchase Order
shall not constitute a waiver of such right or provision unless acknowledged and agreed to by the
Licensor in writing the Licensor reserves the right to assign its right to receive and collect payments
hereunder.

12.4 Notices
Any notice required or permitted under the terms of this Agreement or required by law must be in
writing and must be (a) delivered in person, (b) sent by registered or certified mail return receipt
requested, (c) sent by overnight courier, (d) sent by facsimile (with a hard copy mailed on the same
date), (e) by email whose receipt is acknowledged by an officer of the receiving Party pursuant to the
information set forth in any applicable Purchase Order. Notices shall be considered to have been given
at the time of actual delivery in person, five business days after posting if by mail, one business day if by
overnight courier service, or upon receipt of machine confirmation of successful transmission by
facsimile or email as described herein.

16