Software

This OCN+ End User License Agreement (“EULA”) sets forth a legally binding agreement between Licensee (as defined below) and Strato Automation inc., a corporation duly constituted and organized under the laws of Canada, with its principal place of business located 1550B De Coulomb St., Boucherville, Quebec J4B 7Z7 (“Strato”). “Party” means either one of Strato or Licensee and “Parties” means both of them. PLEASE READ THE FOLLOWING EULA BEFORE USING STRATO’S OCN+ SOFTWARE (AS FURTHER DEFINED BELOW).

BY USING THE SOFTWARE OR BY CLICKING “I AGREE” UPON LOGGING IN THE SOFTWARE FOR THE FIRST TIME, YOU REPRESENT THAT YOU HAVE THE CAPACITY AND AUTHORITY TO LEGALLY BIND THE ORGANISATION, CORPORATION OR OTHER LEGAL ENTITY ON ACCOUNT OF WHOM YOU ARE ACCESSING OR USING THE SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS SET FORTH IN THIS EULA, SELECT “I DO NOT ACCEPT” AND THE LICENSE SHALL NOT BE GRANTED TO YOU. BY USING THE SOFTWARE OR BY CLICKING “I AGREE” UPON LOGGING IN THE SOFTWARE FOR THE FIRST TIME, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA AS SET FORTH IN HEREIN.

INTENDING TO BE LEGALLY BOUND, the Parties agree as follows:

1. DEFINITIONS

Throughout this EULA the following words and expressions shall have the following meanings:

(a) “Client Data” means all Licensee files, data and information, which are submitted, posted, displayed or transmitted by Licensee through its use of the Software. “Client Data” excludes Strato’s Confidential Information, the Software and the Documentation.

(b) “Confidential Information” means all confidential or proprietary information of Strato and its licensors disclosed to Licensee, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes the Software, its source code, the Documentation, Maintenance Releases and the terms of this EULA. Confidential Information does not include information that is or becomes publicly available without breach of any obligation owed to Strato.

(c) “Documentation” means any and all manuals, handbooks, operating procedures, instructions, specifications and other documents and materials that Strato provides or makes available to Licensee, whether in written or electronic form, and describing or explaining the functionalities of the Software; provided, however, that Documentation specifically excludes any “community moderated” forums as provided or accessible through such knowledge bases.

(d) “Intellectual Property” or “IP” means anything that is the object of an Intellectual Property Right.

(e) “Intellectual Property Rights” means all rights, title and interests provided under intellectual property laws anywhere in the world including all rights pursuant to patent, copyright, industrial design, integrated circuit topography, trademarks, and all other similar rights recognized under statutory or civil law.

(f) “Licensee” means the entity that licenses the Software from Strato.

(g) “Maintenance Release” means any update, upgrade, release, toolboxes, supplements, add-on components, or other adaptation or modification of the Software, including any updated Documentation, destined at making the Software materially perform in accordance with the Documentation.

(h) “Order” means an agreement, order entered into between Licensee and Strato or between Licensee and one of Strato’s authorized resellers or an invoice or such other confirmatory document, which is subject to the acceptance of the terms of this EULA by Licensee, and that confirms and documents the price, quantity, and other commercial terms applicable to the Software License.

(i) “Software” means the version of Strato’s OCN+ software made available by Strato to Licensee, including associated modules, toolboxes, utilities, printed materials, manuals and other applicable documentation as well as any and all Maintenance Releases that may be made available by Strato.

2. LICENSE

2.1. Grant. Subject to the terms of this EULA and the applicable Order, and conditional on Licensee’s continuous compliance therewith and payment of the applicable License fee, Strato hereby grants to Licensee a non-exclusive, non-sublicensable, non-transferable licence to use the Software for building energy management and automation (the “License”). Strato reserves all rights not expressly granted to Licensee in this EULA.

2.2. Orders. Licensee may, to purchase the License, execute an Order, whether directly with Strato or one of its authorized resellers. Each Order constitutes a separate contract, incorporating the terms and conditions of this EULA, but entered into (including with respect to the terms of this EULA) as of the date of each applicable Order. For purposes herein, the term “EULA” includes the Order, unless the context suggests otherwise.

2.3. Fees and Payment. When applicable, the License fees and payment terms are as set out in the applicable Order and, when applicable, the License herein is conditional upon the payment by Licensee of the fees as set out in the Order, without setoff or counterclaim, and without any deduction or withholding. Strato may offer additional features or functionality as subscription-based add-ons to the Software and to benefit from such additional features, Licensee shall contact Strato or its authorized resellers and pay the applicable fees, as established by Strato from time to time.

2.4. Configuration. Licensee shall configure the Software in accordance with Strato’s Documentation. Strato is not responsible for the configuration of the Software, including with respect to access control and authentication, network and application security, network stability, interoperability problems, backups and support and maintenance services with respect to the same.

2.5. Use Restrictions. At all times, Licensee’s use of the Software shall comply with this EULA and Strato’s policies and procedures communicated to Licensee. Furthermore, Licensee agrees to abide by the safety information, maintenance instructions or other relevant notices contained in the Software and the Documentation. Except as expressly permitted herein, Licensee shall not, and shall not permit any other third-party to, or attempt to:

(a) modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of the Software;

(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software to any third-party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, hosting, cloud, or other technology or service;

(c) reverse engineer, disassemble, decompile, decode, reproduce, remodel or adapt the Software or otherwise attempt to derive or gain access to its source code, in whole or in part;

(d) bypass or breach any security measure or protection used for or contained in the Software or the Documentation;

(e) remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any copyright, trademarks, terms of the Documentation, warranties, disclaimers, or Intellectual Property Rights, symbols, certification marking, notices, marks, or serial numbers on, embedded in, or relating to, any copy of the Software or Documentation;

(f) use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right, privacy right, or other right of any third-party, or that violates applicable law;

(g) use the Software for purposes of benchmarking the Software or developing, using, or providing a competing software product or service;

(h) use the Software or Documentation in any manner or for any purpose or application not expressly permitted by this EULA.

3. MAINTENANCE AND SUPPORT

3.1. Maintenance Releases. Strato will make Maintenance Releases available to Licensee to fix errors or problems in the functioning of the Software that Strato may, in its sole discretion, make generally available to the users of the Software. All Maintenance Releases being provided by Strato to Licensee are subject to the terms and conditions of this EULA, unless Strato provides additional terms along with the Maintenance Releases. Licensee shall install all Maintenance Releases without delay after receipt.

3.2. Technical Support. Technical support for the Software shall be provided by the Strato authorized reseller Licensee acquired the Software from.

4. WARRANTY

4.1. Limited Warranty. Strato warrants to Licensee that the Software will materially conform to the relevant Documentation during a period of 24 months from the Effective Date. Licensee’s sole remedy, and Strato’s entire liability, for a breach of this warranty will be to repair the Software within a commercially reasonable timeframe to bring it substantially into conformance with the relevant Documentation.

4.2. Exceptions. Notwithstanding any provisions to the contrary in this EULA, the limited warranty set forth in Section 4.1 does not apply to problems arising out of or relating to:

(a) any modification of damage to the Software by Licensee, or any operation or use of, or other activity relating to, the Software other than as specified in the Documentation or this EULA, including any incorporation in the Software of, or combination, operation or use of the Software in or with, any technology, hardware or service not specified or authorized by Strato;

(b) Licensee’s negligence, abuse, misapplication, or misuse of the Software;

(c) Licensee’s failure to promptly install all Maintenance Releases that Strato has made available to Licensee;

(d) Licensee’s breach of any provision of this EULA or any circumstances or causes outside of the reasonable control of Strato.

4.3. Disclaimer of Warranties. EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET FORTH IN SECTION 4.1, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS”. STRATO AND ITS LICENSORS HEREBY DISCLAIM ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHER (INCLUDING ALL CONDITIONS AND WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE), AND SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED OR LEGAL CONDITIONS AND WARRANTIES (INCLUDING ANY WARRANTY OF MERCHANTABILIYT OR FITNESS FOR A PARTICULAR PURPOSE). WITHOUT LIMITING THE FOREGOING, STRATO AND ITS LICENSORS MAKE NO WARRANTY OF ANY KIND THAT THE SOFTWARE OR DOCUMENTATION WILL MEET LICENSEE’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT OR PURPOSE, BE COMPATIBLE, OR WORK WITH ANY OTHER GOODS, SERVICES, TECHNOLOGIES, OR MATERIALS (INCLUDING ANY SOFTWARE, HARDWARE, SYSTEM, OR NETWORK) EXCEPT EXPRESSLY SET FORTH IN THE DOCUMENTATION, OR BE SECURE, ACCURATE, COMPLETE OR ERROR FREE.

STRATO MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE WILL BE MAINTAINED, UPDATED OR CORRECTED OR THAT MAINTENANCE RELEASES, TOOLBOXES, SUPPLEMENTS, ADD-ON COMPONENTS OR OTHER ADAPTATION OR MODIFICATION OF THE SOFTWARE WILL BECOME AVAILABLE.

5. INTELLECTUAL PROPERTY

5.1. IP Ownership. Licensee acknowledges and agrees that (a) the Software and Documentation are licensed, not sold, to Licensee by Strato and Licensee does not and will not acquire any ownership interest in the Software or Documentation, or in any related Intellectual Property Rights, (b) Strato and its licensors are and will remain the sole and exclusive owners of all rights, title, and interests in and to the Software and Documentation, including all Intellectual Property Rights relating thereto and (c) it shall not contest or challenge Strato’s and its licensors’ rights in the Software and the Intellectual Property Rights relating thereto.

5.2. Client Data Ownership. Licensee is and remains the owner of Client Data. Licensee hereby authorizes Strato to use the Client Data as is necessary for Strato to provide the License and perform associated services to Licensee.

5.3. Feedback. Licensee hereby agrees that Strato may freely and without compensation use suggestions, enhancement requests, recommendations or other feedback provided by Licensee relating to the Software (“Feedback“), and Licensee hereby grants Strato an irrevocable, worldwide, royalty-free right to use or implement all Feedback (or any portion of it), including all Intellectual Property Rights associated with it.

5.4. Statistical Information. Strato may monitor Licensee’s use of the Software and use data related to Licensee’s use, but only in an aggregate and anonymous manner, to compile statistical and performance information related to the provision and operation of the Software, to train an artificial intelligence model, to improve the Software or to support benchmarking or the development of future Software features. Licensee agrees that Strato may make such aggregated and anonymous information publicly available, provided that such information does not incorporate any Client Data and/or identify Licensee or its Confidential Information. Strato is and will remain the owner and retains all Intellectual Property Rights in such statistical and performance information.

6. CONFIDENTIALITY

6.1. Treatment of Confidential Information. Licensee shall use the same degree of care to protect the confidentiality of the Confidential Information that it uses to protect its own confidential information (but in no event less than reasonable care) and shall not disclose the Confidential Information to any third-party without Strato’s prior written consent. In addition, Licensee shall not use the Confidential Information for any purpose outside the scope of this EULA.

6.2. Compelled Disclosure. Licensee may disclose Confidential Information to the extent required by applicable law, regulation or legal process, but shall, however: (i) provide Strato with prompt written notice of the requirement to disclose, (ii) provide Strato with reasonable assistance in the event Strato wishes to oppose or contest such disclosure, and (iii) limit its disclosure to what is strictly required by law, regulation or legal process.

6.3. Injunctive Relief. Licensee acknowledges and agrees that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to Strato and its licensors and that, in the event of such breach, Strato will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief.

6.4. Return of Confidential Information. Within 10 days following the termination of this EULA or the receipt of a written request from Strato, Licensee shall return or destroy (at Strato’s option) all documents, records and copies thereof containing Confidential Information fixed in any tangible medium of expression in whatever form or format.

7. LIABILITY

7.1. Exclusion of Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT WILL STRATO OR ITS LICENSORS BE LIABLE FOR ANY (a) INCREASED COSTS, DIMINUTION IN VALUE, OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS, (b) LOSS OF GOODWILL OR REPUTATION, (c) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY SOFTWARE, (d) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, (e) COST OF REPLACEMENT OF GOODS OR SERVICES, OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR WHETHER SUCH LOSSES OR DAMAGES COULD HAVE BEEN REASONABLY FORESEEN.

7.2. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT WILL THE AGGREGATE LIABILITY OF STRATO AND ITS LICENSORS ARISING OUT OF OR RELATED TO THIS EULA, WHETHER ARISING OUT OF OR RELATED TO CONTRACTUAL, EXTRACONTRACTUAL, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE AMOUNT PAID BY LICENSEE UNDER THE APPLICABLE ORDER IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

8. TERM AND TERMINATION

8.1. Term. This EULA commences on the earlier of (i) the date on which this EULA is accepted by Licensee or (ii) the date on which Licensee starts using the Software (the “Effective Date”). Unless earlier terminated in accordance with the terms herein, this EULA will remain in effect for as long as Licensee uses the Software (the “Term”).

8.2. Termination by Licensee. This EULA will automatically terminate on the earlier of (i) date set out in the applicable Order (if applicable) or (ii) when Licensee ceases using the Software.

8.3. Termination by Strato. This EULA may be terminated at any time by Strato:

(a) effective on written notice to Licensee, if Strato has not received payment of the applicable Licensee fees, as the case may be;

(b) effective on written notice to Licensee, if Licensee breaches this EULA or any Order and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 10 days after Strato provides Licensee with written notice of such breach;

(c) effective immediately on written notice to Licensee, if Licensee: (i) is dissolved, liquidated, or wound-up or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay its debts as they become due; (iii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any federal or foreign bankruptcy or insolvency law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for, or consents to, the appointment of a trustee, receiver, receiver-manager, or custodian for all or a substantial part of its property.

8.4. Effect of Termination. Upon termination of this EULA, the License will immediately terminate, without further notice, and all rights, licences, and authorizations granted to Licensee hereunder will immediately terminate and Licensee shall: (i) immediately cease all use of the Software and the Documentation, (ii) permanently destroy or erase all copies of the Software in Licensee’s possession (if any), the Documentation and Strato’s Confidential Information and (iii) if requested by Strato, certify to Strato in a signed written instrument that it has complied with the requirements of this Section 8.4. All amounts payable by Licensee to Strato that remain unpaid, if any, will become immediately payable and due as of the effective date of termination and for greater certainty, no fees already paid will be reimbursed.

8.5. Suspension by Strato. Strato may, at any time, suspend the License immediately with notice to Licensee if one of the events in Section 8.3(a) to 8.3(c) occurs.

8.6. Survival. The following provisions will survive termination of this EULA: Sections 4, 5, 6, 7, 8.4, 8.6, and 9.

9. GENERAL TERMS

9.1. U.S. Government End Use Provisions. Strato provides the Software, including related technology, for ultimate United States federal government end use in accordance with the following: The Software consist of “commercial computer software,” as defined at FAR 2.101. In accordance with FAR 12.211, 12.212 and DFARS 227.7202, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with the Software shall be as provided in the EULA. If a government agency needs additional rights, it must negotiate a mutually acceptable written addendum to the EULA specifically granting those rights.

9.2. Entire Agreement. This EULA constitutes the entire agreement between the Parties hereto, with respect to the matters referred to herein, and supersede all prior agreements, negotiations, commitments or understandings. This EULA may not be modified or amended except by a written amendment signed by both Parties.

9.3. Relationship of the Parties. This EULA does not confer Licensee with any rights of agent, legal representative, joint-venture partner, associate or employee of Strato for any purpose whatsoever.

9.4. Expenses. Each Party is responsible for its own costs and expenses incurred in the performance of its obligations under this EULA.

9.5. Set-off. Strato has the right to set-off any amount owed to it by Reseller against any amount owed by Strato to Reseller, under this EULA or otherwise.

9.6. Cumulative rights. All rights of Strato hereunder are cumulative and in addition to any other right or remedy Strato may have under this EULA, at law or otherwise.

9.7. Assignment. Licensee must not assign or transfer, in whole or in part, its rights and obligations arising from the provisions of this EULA without Strato’s prior written consent. Any purported assignment in violation of this Section shall be void. This EULA binds and benefits the Parties, their respective successors and permitted assigns.

9.8. Force Majeure. Except for performance of a payment obligation, neither Party will be liable under this EULA for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to a cause beyond a Party’s reasonable control.

9.9. Waiver. No waiver of any provision of this EULA shall be valid unless executed in writing. The failure of Strato to insist upon the strict performance of an obligation herein does not constitute a waiver of its right to insist upon, at any time thereafter, the strict performance thereof, or of any other obligation herein.

9.10. Severability. If any provision of this EULA is held by a court of competent jurisdiction to be invalid or unenforceable, the provision will be modified and interpreted by the court so as best to accomplish the intent of the Parties. The invalidity or unenforceability of any provision will not affect any of the other provisions of this EULA.

9.11. Notices. All notices and other communications required or permitted hereunder will be in writing and will be delivered by hand, mail or courier (with proof of receipt) or e-mail. When addressed to Strato, notices must be addressed to: Strato Automation inc., 1550B De Coulomb St., Boucherville, Quebec J4B 7Z7, with email copy to support@stratoautomation.com.

9.12. Applicable Law and Jurisdiction. If Licensee is domiciled in the United States of America: this EULA shall be governed by the laws of the State of New York, without regard to its provisions on conflicts of law and each Party hereby irrevocably consents to the jurisdiction and venue of courts located in the United States in connection with any dispute hereunder or the enforcement of any right or obligation hereunder. However, if Licensee is domiciled anywhere but the United States of America, this EULA is governed by the laws of the Province of Quebec, Canada, without regard to its provisions on conflicts of law and each Party hereby irrevocably consents to the exclusive jurisdiction and venue of the courts of the judicial district of Montreal, Quebec (Canada) in connection with any dispute hereunder or the enforcement of any right or obligation hereunder.

9.13. Language. Les parties ont expressément décidé d’être liées par la version anglaise du présent contrat après avoir consulté sa version française. The parties have expressly agreed to be bound by the English version of this EULA after consulting the French version.