End User License Agreement

IMPORTANT PLEASE READ CAREFULLY BEFORE USING THIS PRODUCT: THIS SOFTWARE LICENSE AGREEMENT (“Agreement”) CONTAINS THE LICENSE TERMS AND CONDITIONS FOR THE PROMAI WIZוֹSUITE SOFTWARE AND RELATED DOCUMENTATION (collectively “Software”). IF YOU DOWNLOAD, INSTALL OR USE THE SOFTWARE, YOU AGREE TO BE LEGALLY BOUND BY THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE LICENSE TERMS YOU MAY NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE AND YOU MUST DELETE ANY SOFTWARE FILES ACCESSED BY YOU OR A THIRD PARTY ON YOUR BEHALF FROM ANY AND ALL COMPUTER MEMORY INTO WHICH SUCH SOFTWARE HAS BEEN LOADED OR STORED.

When used in this agreement the term “Promai” shall mean Promai Ltd., its operating companies, subsidiaries and affiliates.

If you are installing the Software on behalf of an end user you must agree that you are acting as an agent of such end user customer before proceeding. As an agent for the end user you hereby agree that you have either; 1) read and agree to the terms of this Agreement as authorized by the end user, or 2) you have made the end user aware of the license terms and the end user has explicitly accepted them.

1) LICENSE GRANT.

a) Promai grants to you a non-exclusive, non-transferable license to use the Software without a right to sublicense, license solely for (“Permitted Purpose”): (i) Internal use for the purpose of examining the licensed Software; (ii) Integrate the licensed Software with your services and market the bundle to End Users within the Territory; and (iii) Create documentation including but not limited to, EULA, derived from the Documentation to the extent required to create end-user documentation to support the licensed Software.

Documentation means the user manuals, porting guides, reference manuals, programmer’s manuals, and installation manuals included with the licensed Software, or other documentation provided by the Promai to you relating to the licensed Software.

b) Software may include or incorporate software provided by Microsoft Corporation (“Microsoft Software”). In addition to all other terms and conditions of this Agreement, the following applies to Your installation and use of Microsoft Software. You may not: (i) sell, lease, loan, sublicense, or use the Microsoft Software for commercial software hosting services; (ii) publish any benchmark results for the Microsoft Software; (iii) work around any technical limitations in the Microsoft Software; or (iv) separate components of the Microsoft Software and install them on different pieces of equipment.

2) THIRD PARTY SOFTWARE.

The Software may include code developed by one or more third parties (“Third Party Software”). Some Third Party Software may be subject to other terms and conditions that may be found in an open source software disclosure package provided with the Software or available for download with the product documentation. Notwithstanding the terms and conditions of this Agreement, the Third Party Software is licensed to you subject to the terms and conditions of the software license agreement identified in the open source software disclosure. If the third party terms and conditions include licenses that provide for the availability of source code (such as the GNU General Public License), the open source software disclosure or the media on which the Software may be delivered will contain the source code or provide instructions where a copy of such source code can be obtained.

3) DISCLAIMER OF WARRANTY.

a) As the licensed Software is in its alfa stage, Promai does not warrant that: (i) the licensed Software is free from errors and/or will run properly on all computer hardware and/or operating systems, (ii) the licensed Software will meet your requirements or operate in the combinations which may be selected for use by you, or (iii) the operation of the licensed Software will be uninterrupted or error-free.

b) The warranties set forth in this Section 3) shall not apply to any defect which results from the licensed Software or any part thereof: (i) being modified or altered by any person except for the Promai, (ii) being combined with other software or hardware if the defect is a result of such combination, (iii) being subject to misuse, negligence, accident, or unauthorized use, (iv) not being used in accordance with this EULA or License Agreement executed between you and Promai or not properly installed or maintained.

c) The warranties set forth in this Section 3) are granted to you only, and not to any third party, including without limitation, any distributor or end user.

EXCEPT AS PROVIDED IN THIS SECTION 3), THE LICENSED SOFTWARE IS PROVIDED “AS-IS”. SINCE THE LICENSED SOFTWARE IS IN ITS ALFA STAGE, PROMAI MAKES NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE LICENSED SOFTWARE INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR USE OR PURPOSE, MERCHANTABILITY, OR NON- INFRINGEMENT. PROMAI DOES NOT PROVIDE ANY WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT TO ANY THIRD-PARTY SOFTWARE OR OPEN-SOURCE SOFTWARE INCLUDED IN THE LICENSED SOFTWARE.

4) INDEMNIFICATION.

a) PROMAI’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE LICENSED SOFTWARE PROVIDED UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED THE AMOUNT ACTUALLY PAID TO PROMAI UNDER THE LICENSE AGREEMENT.

b) IN NO EVENT WILL PROMAI BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION BUSINESS INTERRUPTION, OR ANY LOST DATA, LOST PROFITS, LOST GOODWILL, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR INTELLECTUAL PROPERTY INFRINGEMENT, ARISING FROM OR RELATING TO THIS EULA OR THE LICENSE AGREEMENT, HOWEVER, CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING GROSS NEGLIGENCE; WILLFUL MISCONDUCT OR STRICT LIABILITY), EVEN IF PROMAI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

c) YOU ACKNOWLEDGE THAT THE FEES REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES AND THAT PROMAI WOULD NOT HAVE ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.

5) INTELLECTUAL PROPERTY INDEMNIFICATION

a) Promai will defend at its expense, any suit or proceeding brought against you insofar as such a suit or proceeding is based on a claim that the licensed Software when used within the scope of the license granted hereunder, infringes upon a patent or copyright or is a misappropriation of a trade secret of a third party enforceable in the State of Israel, and Promai will pay such costs and damages finally awarded against you in any such suit or proceeding that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such suit or proceeding. The foregoing obligations are conditioned on you: (a) notifying Promai promptly in writing of such action, (b) giving Promai sole control of the defense thereof and any related settlement negotiations, and (c) cooperating and, at Promai’s request and expense, assisting in such defense. If any portion of the licensed Software becomes, or in Promai’s opinion is likely to become, the subject of an infringement claim, Promai may, at its option and expense, either (i) procure for you the right to continue using the licensed Software, (ii) replace or modify the licensed Software so that it becomes non-infringing while giving a substantially equivalent performance, or (iii) terminate this Agreement and the licenses granted hereunder, and refund the license fees paid by you for the licensed Software. Anything to the contrary herein notwithstanding, Promai does not provide any indemnification with respect to any intellectual property infringement claim arising from or in any way related to Third Party Software or Open-Source Software. You shall not, without the prior written consent of the Promai enter into any settlement or compromise concerning any claim subject to indemnification pursuant to this Section 5).

b) Notwithstanding the foregoing, Promai will have no obligation with respect to any infringement claim based on (1) any use of the licensed Software not in accordance with this EULA or License Agreement; or (2) any modification of the licensed Software by any person other than Promai; or (3) your continued use of an allegedly infringing licensed Software after being notified thereof by Promai; or (4) Promai following any of your instruction.

c) If Promai provides you with a non-infringing replacement version of the licensed Software, you shall immediately thereafter (i) cease to use the replaced, infringing licensed Software, (ii) notify any distributors (if any) and end-users of the availability of the non-infringing replacement version of the licensed Software, and (iii) promptly supply a copy of the non-infringing replacement version of the licensed Software to your end users or distributers.

d) THIS SECTION 5) STATES PROMAI’S ENTIRE LIABILITY AND THE YOUR EXCLUSIVE REMEDY FOR ANY CLAIMS OF INFRINGEMENT INVOLVING ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING ANY EXHIBIT HERETO.

6) REMOTE SERVICES.

Certain models of Equipment are supported and serviced using data that is automatically collected by Promai or transmitted to or from Promai by the Equipment connected to Customer's network (“Remote Data”) via electronic transmission to a secure off-site location (“Remote Data Access”). Remote Data Access also enables Promai to transmit to Customer Releases for Software and to remotely diagnose and modify Equipment to repair and correct malfunctions. Examples of Remote Data include product registration, meter read, supply level, Equipment configuration and settings, software version, and problem/fault code data. Remote Data may be used by Promai for billing, report generation, supplies replenishment, support services, recommending additional products and services, and product improvement/development purposes. Remote Data will be transmitted to and from Customer in a secure manner specified by Promai. Remote Data Access will not allow Promai to read, view or download the content of any Customer documents or other information residing on or passing through the Equipment or Customer's information management systems. Customer grants the right to Promai, without charge, to conduct Remote Data Access for the purposes described above. Upon Promai's request, Customer will provide contact information for Equipment such as name and address of Customer contact and IP and physical addresses/locations of Equipment. Customer will enable Remote Data Access via a method prescribed by Promai, and Customer will provide reasonable assistance to allow Promai to provide Remote Data Access. Unless Promai deems Equipment incapable of Remote Data Access, Customer will ensure that Remote Data Access is maintained at all times maintenance or support services are being provided.

7) DIAGNOSTIC SOFTWARE.

Software used to evaluate or maintain Promai equipment (“Diagnostic Software”) may be embedded in, reside on, or may be loaded onto Promai equipment. The Diagnostic Software and method of entry or access to it constitute valuable trade secrets of Promai. Title to Diagnostic Software shall at all times remain solely with Promai and/or its licensors. You agree that (a) your acquisition of the equipment does not grant you a license or right to use Diagnostic Software in any manner, and (b) that unless separately licensed by Promai to do so, you will not access, use, reproduce, distribute, or disclose Diagnostic Software for any purpose (or allow third parties to do so). You agree at all times to allow Promai to access, monitor, and otherwise take steps to prevent unauthorized use or reproduction of Diagnostic Software and to remove or disable Diagnostic Software.

8) MISCELLANEOUS

a) Term and Termination. This Agreement commences on the Effective Date and shall remain in effect for one year or for a longer period as the contract period between the parties is extended and the license fees will be paid, unless earlier terminated in accordance with the provisions of this Agreement. Promai may terminate this Agreement thirty (30) days after written notice to you in the event that your breach any provision of this Agreement and have not cured such breach within the thirty (30) day period.

b) Notices. Any notice, request, demand, or other communication required or permitted hereunder shall be in writing and shall be given or made by any delivery services requiring signature of receipt, registered air mail (return receipt requested), or e-mail (electronic confirmation required) addressed to the respective party as designated above.

c) Choice of Law; Jurisdiction. This EULA shall be governed and construed by the laws of the State of Israel, excluding conflict of laws provisions. The courts of Tel Aviv, Israel, shall have exclusive jurisdiction over any dispute arising under or in connection with this Agreement, and the parties hereby submit to the jurisdiction and venue of such courts.

d) Waiver. No delay, omission, or failure to exercise any right or remedy hereunder by either party shall be deemed to be a waiver thereof; nor shall any exercise of any right or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right or remedy granted hereby or by law.

e) Entire Agreement. This Agreement and the Exhibits attached hereto constitute the entire understanding and contract between the parties with respect to the subject matters hereof and supersede any and all prior or contemporaneous oral or written communications with respect to the subject matter hereof.

f) Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Neither party may assign this Agreement or any of that party’s rights or obligations hereunder without the prior written permission of the other party, except that Promai may freely assign this Agreement to an affiliate of Promai. Any purported assignment in violation of the foregoing shall be void.

g) Export. You will not export or re-export the Software without appropriate United States or foreign government licenses or for any purpose prohibited by any applicable export control laws.