PXiSE Energy Solutions a Yokogawa Company End User License Agreement DMX Product Updated _______, 2023 This End User License Agreement (“Agreement”) is between you (“you” or “Customer”) and PXiSE Energy Solutions, LLC (“PXiSE”) from which you are procuring the Offerings (defined below) and governs your use of the Offerings purchased through either Microsoft AppSource or Azure Marketplace (collectively, “Marketplace”). This Agreement is the parties’ entire agreement on this subject and merges and supersedes all related prior and contemporaneous agreements. By agreeing to these terms, you represent and warrant that you have the authority to accept this Agreement, and you also agree to be bound by its terms. This Agreement applies to all Orders entered into under this Agreement . Capitalized terms have the meanings given under “Definitions.” 1. LICENSE TO OFFERINGS 1.1 License Grant. Offerings are licensed and not sold. Upon acceptance of an Order, and subject to Customer’s compliance with this Agreement, PXiSE grants Customer a non-exclusive, non-transferable and limited license to use the quantity of ordered Offerings in accordance with the Documentation. These licenses are solely for Customer’s own use and business purposes and are non-transferable except as expressly permitted under this Agreement or applicable law. Offerings may contain or be provided with components that are subject to open-source software licenses. Any use of those components may be subject to additional terms and conditions and Customer agrees that any applicable licenses governing the use of the components will be incorporated by reference in this Agreement. 1.2 Duration of Licenses. Offerings are licensed on a subscription basis of one (1) year (“Initial Subscription Term”). Upon expiration of the Initial Subscription Term, the license will automatically renew for additional one-year terms (each a “Renewal Subscription Term” and, collectively, with the Initial Subscription Term, the “Subscription Term”)), at the then-current terms and conditions , unless either party provides notice of non-renew at least 30 days before the expiration of the then-current Subscription Term. 1.3 Affiliates. Customer may order Offerings for use by its Affiliates. If it does, the licenses granted to Customer under this Agreement will apply to such Affiliates, but Customer will have the sole right to enforce this Agreement against PXiSE. Customer will remain responsible for all obligations under this Agreement and for its Affiliates’ compliance with this Agreement and any applicable Orders. 1.4 Reservation of Rights. PXiSE reserves all rights not expressly granted in this Agreement. Offerings are protected by copyright and other intellectual property laws and international treaties. No rights will be granted or implied by waiver or estoppel. Rights to access or use Offerings on a device do not give Customer any right to implement PXiSE’s patents or other intellectual property in the device itself or in any other software or devices. 1.5 Restrictions. Except as expressly permitted in this Agreement, Documentation or an Order, Customer must not (and is not licensed to): a. copy, modify, make derivative works, reverse engineer, decompile, or disassemble any Offering, or attempt to do so; b. install or use any third party software or technology in any way that would subject PXiSE’s intellectual property or technology to any other license terms; c. work around any technical limitations in an Offering or restrictions in the Documentation; d. use an Offering for any unlawful purpose; or e. distribute, sublicense, rent, lease, or lend any Offerings, in whole or in part, or use them to offer hosting services to third parties or use them on a time-sharing or service bureau basis. 1.6 Suggestions. To the extent that Customer submits to PXiSE any suggestions, ideas, enhancement requests, feedback, recommendations, or other information relating to the Offerings (“Suggestions”), Customer hereby grants PXiSE a non-exclusive, royalty-free, worldwide, perpetual, irrevocable license to freely use, disclose, and otherwise exploit such Suggestions, including by incorporating the Suggestions into future versions of the Offerings. 2. PRIVACY 2.1 ______________ 2.2 Support Data. PXiSE may collect and use Support Data internally to provide technical support for the Offering. PXiSE will not use Support Data for any other purpose unless otherwise agreed in writing by the parties. 3. CONFIDENTIALITY 3.1 Non-Disclosure Agreement. The parties will treat all confidential information exchanged between the parties under this Agreement in accordance with the separate nondisclosure agreement (“NDA”) executed by the parties . If no separate NDA is in effect, the following provisions apply to the parties’ exchange of confidential information. 3.2 Confidential Information. “Confidential Information” is non-public information that is designated “confidential” or that a reasonable person should understand is confidential, including Support Data and the terms of this Agreement. Confidential Information does not include information that: (i) becomes publicly available without a breach of a confidentiality obligation; (ii) the receiving party received lawfully from another source without a confidentiality obligation; (iii) is independently developed; or (iv) is a comment or Suggestion volunteered about the other party’s business, products, or services. 3.3 Protection of Confidential Information. Each party will take reasonable steps to protect the other’s Confidential Information and will use the other party’s Confidential Information only for purposes of the parties’ business relationship. Neither party will disclose Confidential Information to third parties, except to its Representatives, and then only on a need-to-know basis under nondisclosure obligations at least as protective as this Agreement. Each party remains responsible for the use of Confidential Information by its Representatives and, in the event of discovery of any unauthorized use or disclosure, must promptly notify the other party. 3.4 Disclosure Required By Law. A party may disclose the other’s Confidential Information if required by law, but only after it notifies the other party (if legally permissible) to enable the other party to seek a protective order. 3.5 Irreparable Harm. Each party acknowledge that any actual or threatened breach of its obligations under this Section 3 would result in irreparable injury to the other party and further agrees that there is no adequate remedy at law for any breach of its obligations under this Section 3 and that upon any such breach or any threat of breach of such obligations by a party, the other party will be entitled to appropriate equitable relief, including injunctive relief, to prevent or mitigate such irreparable harm. The parties hereby waive any requirement to obtain a bond or post any other security as a condition precedent to such equitable relief. 3.6 Duration of Confidentiality Obligation. These obligations apply for a period of five years after a party receives the Confidential Information. 4. SUPPORT At no additional charge, PXiSE will provide its Standard Support Services to Customer for the Offering. PXiSE may update its Standard Support Services from time to time, but any updates that would materially reduce or degrade the applicable Standard Support Services will not apply to Customer under this Agreement until renewal of the Subscription Term. Standard Support Services will terminate upon termination of the Subscription Term. Any customization, professional services, or any other support not included in the Standard Support Services will be subject to a separate agreement and additional fees . 5. REPRESENTATION AND WARRANTIES 5.1 PXiSE represents and warrants that (i) it has full rights and authority to enter into, perform under, and grant the rights in, this Agreement, and (ii) its performance will not violate any agreement or obligation between it and any third party. 5.2 PXiSE represents and warrants that the Offering will substantially conform to the Documentation; For any breach of this warranty, Customer’s exclusive remedy, and Company’s entire liability will be the repair or replacement of the Offering. If Company, in its sole discretion, determines it is not commercially reasonable to repair or replace the Offering, Customer will receive a pro-rata refund for any unused prepaid fees for such Offering. 5.3 Disclaimer. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE OFFERING, DOCUMENTATION AND OTHER INFORMATION, MATERIALS AND SERVICES PROVIDED BY PXiSE ARE PROVIDED “AS IS.” PXiSE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER (INCLUDING ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE), AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE OFFERING OR DOCUMENTATION, OR ANY OTHER PXiSE OR THIRD PARTY GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE OR HARDWARE), OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR OTHER PERSONS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE, HARDWARE, SYSTEM OR NETWORK), OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. 6. DEFENSE OF THIRD PARTY CLAIMS 6.1 By Customer. Customer will defend PXiSE and its Affiliates from and against any and all third party claims, actions, suits, proceedings arising from or related to Customer’s or any authorized user’s violation of this Agreement (a “Claims Against PXiSE”), and will indemnify PXiSE and its Affiliates for all reasonable attorney’s fees incurred and damages and other costs finally awarded against PXiSE or its Affiliates in connection with or as a result of, and for amounts paid by PXiSE or its Affiliates under a settlement Customer approves of in connection with a Claim Against PXiSE. PXiSE must provide Customer with prompt written notice of any Claims Against PXiSE and allow Customer the right to assume the exclusive defense and control of the claim and cooperate with any reasonable requests assisting Customer’s defense and settlement of such matter. 6.2 By PXiSE. PXiSE will defend Customer from and against any and all third party claims, actions, suits, proceedings, and demands alleging that the use of the Offering as permitted under this Agreement infringes or misappropriates a third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer for all reasonable attorney’s fees incurred and damages and other costs finally awarded against Customer in connection with or as a result of, and for amounts paid by Customer under a settlement PXiSE approves of in connection with a Claim Against Customer; provided, however, that PXiSE has no liability if a Claim Against Customer arises from any modification, combination or development of the Offering that is not performed or authorized in writing by PXiSE, including in the use of any application programming interface (API). Customer must provide PXiSE with prompt written notice of any Claim Against Customer and allow PXiSE the right to assume the exclusive defense and control and cooperate with any reasonable requests assisting PXiSE’s defense and settlement of such matter. This section states PXiSE sole liability with respect to, and Customer’s exclusive remedy against PXiSE for, any Claim Against Customer. 6.3 Notwithstanding anything contained in the above Sections 6.1 and 6.2, (i) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel; and (ii) no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified parties (such consent not to be unreasonably withheld), if: (a) the third party asserting the claim is a government agency; (b) the settlement arguably involves the making of admissions by the indemnified parties; (c) the settlement does not include a full release of liability for the indemnified parties; or (d) the settlement includes terms other than a full release of liability for the indemnified parties and the payment of money. 7. LIMITATION OF LIABILITY 7.1 Maximum Liability. PXiSE’s maximum, aggregate liability to Customer under this Agreement for any incident giving rise to a claim will not exceed the amount Customer paid for the Offering during the 12 months before the incident. Multiple claims will not expand this limitation . 7.2 Free Offerings. For Offerings provided free of charge, PXiSE’s liability is limited to direct damages finally awarded up to US$1,000. 7.3 No Indirect Damages. In no event will either party be liable for indirect, incidental, special, punitive, or consequential damages, or loss of use, loss of profits, or interruption of business, however caused or on any theory of liability even if such party knew or should have known of the possibility of such damages. 7.4 Exceptions. No liability limitation or exclusions in this Section 7 will apply to liability arising out of either party’s: (i) obligations under Section 6 (Defense of Third Party Claims); (ii) violation of the other party’s intellectual property rights; (iii) gross negligence, willful misconduct, or fraud; and/or (iv) amounts that by law cannot be limited. 8. PRICING AND PAYMENT Microsoft will invoice and charge Customer under the terms of the Microsoft Commercial Marketplace Terms of Use and applicable Order. 9. TERM AND TERMINATION 10.1 Term. This Agreement is effective until terminated by a party, as described below. 10.2 Termination Without Cause. Either party may terminate this Agreement without cause on 60 days’ notice. Notwithstanding such termination, licenses will continue for the duration of the Subscription Term, subject to the terms of this Agreement. PXiSE will not provide refunds or credits for any partial Subscription Term if the Agreement is terminated without cause. 10.3 Termination For Cause. Without limiting other remedies it may have, either party may terminate this Agreement immediately on notice if (i) the other party materially breaches the Agreement, and fails to cure the breach within 30 days after receipt of notice of the breach; or (ii) the other party becomes Insolvent. Upon such termination, the following will apply: a. All licenses granted under this Agreement will terminate immediately. b. All amounts due under any unpaid invoices will become due and payable immediately. c. If PXiSE is in breach, Customer will receive a pro-rata refund for any unused prepaid fees for such Offering. 10.4 Suspension. PXiSE may suspend use of the Offering without terminating this Agreement during any period of material breach. PXiSE will give Customer reasonable notice before suspending the Offering. Suspension will only be to the extent reasonably necessary . 10.5 Survival. Provisions of this Agreement, including the applicable Order, which by their nature are to be performed or enforced following any termination of this Agreement will survive such termination. 10. MISCELLANEOUS 10.1 Entire Agreement. This Agreement including the applicable Order constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous communications, whether written or oral, regarding the subject matter covered in this Agreement. If there is a conflict between any parts of this Agreement, the following order of precedence will apply: (i) Order, (ii) this Agreement, and (iii) Documentation. 10.2 Independent Contractors. The parties are independent contractors. Customer and PXiSE each may develop products independently without using the other’s Confidential Information. 10.3 Agreement Not Exclusive. Customer is free to enter into agreements to license, use, and promote the services of others. 10.4 Amendments. Unless otherwise agreed in a writing signed by both parties, PXiSE will not change the terms of this Agreement during the term of this Agreement . 10.5 Assignment. Neither party may assign this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld; provided that PXiSE may assign this Agreement to (i) any Affiliate, or to (ii) any surviving or successor company which acquires substantially all of PXiSE’s business or the assets of PXiSE to which this Agreement relates, whether by a merger, sale of substantially all of PXiSE’s assets or equity securities, or consolidation, sale of stock, reorganization, or otherwise. Any attempted assignment in violation of this section will be null and void. This Agreement will inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. 10.6 Severability. If a court of competent jurisdiction finds any term of the Agreement unenforceable, the Agreement will be deemed modified as necessary to make it enforceable, and the rest of the Agreement will be fully enforced to affect the parties’ intent. 10.7 Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver. Any waiver must be in writing and signed by the waiving party. 10.8 No Third Party Beneficiaries. This Agreement does not create any third party beneficiary rights except as expressly provided by its terms. 10.9 Notices. Notices must be in writing and will be treated as delivered on the date received at the address, date shown on the return receipt, email transmission date, or date on the courier or fax confirmation of delivery. Notices to PXiSE must be sent to the address stated in the Order. Notices to Customer will be sent to the individual at the address Customer identifies on its account as its contact for notices. PXiSE may send notices and other information to Customer by email or other electronic form. 10.10 Applicable Law and Venue. This Agreement and performance under this Agreement will be construed and enforced in accordance with the laws of the State of Texas, without reference to conflict of laws principles. Any legal actions arising under this Agreement will be instituted only in the courts of Harris County, and each party waives all objections to jurisdiction and venue of such courts; provided that nothing in this section will restrict either party from seeking injunctive relief in a forum of its choice. In any litigation, each party will bear its own costs, expenses and attorney fees associated or incurred in enforcing this Agreement . 10.11 Government Procurement Rules. By accepting this Agreement, Customer represents and warrants that: (1) it has complied and will comply with all applicable government procurement laws and regulations; (2) it is authorized to enter into this Agreement; and (3) this Agreement satisfies all applicable procurement requirements. 10.12 Compliance With Laws. PXiSE will comply with all laws and regulations applicable to its provision of the Offerings. PXiSE will obtain and maintain any approvals, licenses, filings, or registrations necessary to its performance, and will comply with all law (including law related to export, corruption, money laundering, or any combination of these). Customer must also comply with laws applicable to its use of the Offerings. 10.13 Construction. In this Agreement, unless the contrary intention appears: (i) headings are for convenience only and do not affect the interpretation of this agreement; (ii) the singular includes the plural and vice versa; (iii) the words “such as,” “for example,” “including” and similar expressions are not used as, nor are intended to be, interpreted as words of limitation; (iv) a reference to a person or third party includes a natural person, partnership, joint venture, government agency, association, corporation or other body corporate; (v) a thing (including a right) includes a part of that thing; and (vi) no rule of construction applies to the disadvantage of a Party because that Party was responsible for the preparation of this agreement or any part of it. 11. DEFINITIONS “Affiliate” means any legal entity that controls, is controlled by, or is under common control with a party. “Control” means ownership of more than a 50% interest of voting securities in an entity or the power to direct the management and policies of an entity. “Confidential Information” is defined in Section 3. “Documentation” means all user manuals, training materials, and version or release notes that are published by or on behalf of PXiSE (in any form, whether on-line or in electronic, printed, or other form) to define the performance of the Offering and/or that PXiSE makes available for use with the Offering. “Insolvent” means admitting in writing the inability to pay debts as they mature; making a general assignment for the benefit of creditors; suffering or permitting the appointment of a trustee or receiver for all or any of its (i.e., the non-terminating party’s) assets, unless such appointment is vacated or dismissed within 60 days from the date of appointment; filing (or having filed) any petition as a debtor under any provision of law relating to insolvency, unless such petition and all related proceedings are dismissed within 60 days of such filing; being adjudicated insolvent or bankrupt; having wound up or liquidated; or ceasing to carry on business. “Offering” means the software product(s) identified in an Order that PXiSE makes available under or in connection with this Agreement in object code form , including updates, modifications or new releases of the Offering provided or made available to you by PXiSE and any Documentation thereto. “Order” means an ordering document used to transact the Offering via the Marketplace. “Representatives” means a party’s employees, Affiliates, contractors, advisors and consultants. “Standard Support Services” means PXiSE’s standard technical support services found at [insert link]. “Suggestions” is defined in Section 1.6. “Support Data” means all data, including all text, sound, video, image files, or software, that are provided to PXiSE by or on behalf of Customer (or that Customer authorizes PXiSE to obtain from an Offering) through an engagement with PXiSE to obtain Standard Support Services for the Offering covered under this Agreement. “Use” or “use” means to copy, download, install, run, access, display, use or otherwise interact with.