Resale Customer End User Licence Agreement

This end user license agreement (“Agreement”) governs the access, use and provisioning of the Services provided by PowerX Technology Limited, a company registered in England and Wales (Registered Number 11021461) and having its registered office at 45 Gresham Street, London, EC2V 7BG, United Kingdom (“PowerX”) and licensed to Customer from Reseller. By ordering the Services or accessing or using the Services through Reseller, Customer agrees to be bound by the terms and conditions of this Agreement. Defined terms are set forth in Section 9 below.

 1. SERVICES

1.1 SaaS Services. If SaaS Services are included in an Order Document, subject to the terms of this Agreement and the applicable Order Document (including any License Metrics outlined therein), PowerX grants to Customer, during the Order Term, a limited, revocable, non-exclusive, non-transferable, non-sublicensable licence to access and use such SaaS Services on a subscription basis for Customer’s internal business purposes.

1.2 Services Term. The term for the SaaS Services commences on the date specified in the applicable Order Document and shall continue until the agreed term is expired or terminated (“Order Term”).

1.3 Access. The Services may be accessed by Customer’s (a) employees and (b) consultants, contractors and agents, and used to manage the License Metrics specified in the applicable Order Document (“Authorised User”). Each Authorised User must have a need for such access, be bound by confidentiality restrictions materially consistent with those set forth herein, and comply with the terms of this Agreement. Customer shall be responsible for any act or omission by its Authorised Users, notifying PowerX of any actual or suspected violation, and reasonably cooperating with any investigation by PowerX or remedial measures reasonably required by PowerX in light of such matter.

1.4 Customer Data and Compliance. Customer shall comply with Applicable Law in connection with its use of the Services, including, without limitation, by providing notice to its Authorised Users in its privacy policy or as it otherwise determines about how data will be used and shared with PowerX as a downstream processor, and obtaining and maintaining valid consent for PowerX to process data in connection with the Services, in each case before providing any data to PowerX. If Customer uses SMS or other messaging functionality, it shall comply with all applicable requirements, including obtaining and maintaining valid consumer consent to send and receive messages. PowerX may use third-party service providers to place cookies, tags or similar functionality in the SaaS Services and/or Software to compile metrics and analytics to help improve the Services, and which are covered by the third party’s privacy policy. Customer shall ensure that its users do not provide unlawful, obscene, offensive or fraudulent content or data or violate Applicable Law, and agrees that PowerX may remove Customer content or data that violates this restriction without notice to Customer. Customer will not share personal data with PowerX that is defined as sensitive personal data under Applicable Law, such as personal health information, financial information or biometric data, or other similar data that requires additional protections under Applicable Law. Customer acknowledges that Customer, not PowerX, is solely responsible for Customer Data and for monitoring the content of Customer’s and its users’ data transmitted through the SaaS Services.

1.5 Acceptable Use. Customer shall use the Services solely as authorised in this Agreement and agrees it will not, and will not cause or allow any other party to: (i) modify, copy, decompile, disassemble, reverse engineer, attempt to derive any object code or source code from, or misappropriate, all or any portion of PowerX’s Services or any PowerX Intellectual Property; (ii) sell, resell, distribute, lease, rent, sublicense, or provide on a “service bureau” basis, all or any portion of the Services or any PowerX Intellectual Property, or provide unauthorised access to the Services, to any third party; (iii) use the Services to store or transmit any malicious code, including any computer virus, worm, time bomb or Trojan horse; (iv) interfere with or disrupt the integrity or performance of the Services or PowerX’s networks or operations; (v) violate the intellectual property, privacy or personal rights of others; or (vi) use or permit, enable or assist any third party to use, the Services to create competing products or services, or violate this Agreement. If Customer violates this Section, PowerX may suspend, terminate or otherwise limit Customer’s access to, or use of, all or any part of the Services without notice, penalty or any refund of fees.

1.6 Passwords; Security. Access to the Services may require the Customer to enter a username and password combination (“Password”). Customer is responsible for (i) maintaining the confidentiality of all Passwords and for ensuring that each Password is used only by the authorised user and (ii) any and all activities that occur under Customer's account. Customer agrees to immediately notify PowerX of any unauthorised use of a Password or any other breach of security known to Customer. PowerX shall have no liability for any loss or damage arising from Customer's failure to comply with these requirements. PowerX may suspend access to the Services under a Password if PowerX reasonably considers there has been, or is likely to be, unauthorised access to the Services using such a Password.

1.7 Audit and Usage. During the Order Term and for one (1) year following termination of this Agreement, PowerX may audit Customer’s use of the Services to review compliance with this Agreement. Customer understands that certain software includes a license management component to track usage and agrees not to impede, disable, or otherwise undermine its operation. PowerX reserves the right to monitor and enforce License Metrics. Customer shall maintain and make available to PowerX upon written request records sufficient to permit PowerX or its independent auditor to verify Customer’s compliance with the terms of this Agreement.

2. INTELLECTUAL PROPERTY

2.1 PowerX Intellectual Property. All rights not expressly licensed to Customer under this Agreement are reserved exclusively by PowerX, including, without limitation, all ownership, title and proprietary rights in and to PowerX Intellectual Property. “PowerX Intellectual Property” includes, without limitation, the Services (including any materials, deliverables or code provided as part of the Services) and all inventions, software, technology, patent rights (including patent applications and disclosures), copyrights, trade secrets, trademarks, service marks, methodologies, know-how, tools, models, templates, source code, object code, algorithms, user interfaces and screen designs, and information, metrics, analytics and data generated or processed by PowerX or PowerX’s software or systems, whether pre-existing or created after the Effective Date, and whether developed by PowerX or a third party, including any modifications, enhancements and derivatives thereof.

2.2 Customer Intellectual Property. Customer retains sole and exclusive ownership to any and all Customer Data, and Customer shall be responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which it acquired Customer Data. Customer Intellectual Property specifically excludes PowerX Intellectual Property. Customer grants PowerX the right to compile and use aggregated or anonymised Customer Data for PowerX’s legitimate business purposes, including to improve PowerX’s products and services, without further obligation to Customer and acknowledges and agrees that PowerX shall be sole owner of any PowerX Intellectual Property that results from such use.

2.3 Feedback. If Customer chooses to provide any verbal or written ideas or feedback to PowerX or Reseller about the Services, Customer hereby assigns and transfers to PowerX all right and title in and to such feedback, including any derivatives thereof, without any further obligation to Customer.

 3. CONFIDENTIALITY

Customer shall not disclose PowerX Confidential Information, or any part thereof, to any third party. Customer shall only use PowerX Confidential Information to exercise Customer’s rights and obligations under this Agreement. Furthermore, Customer agrees to use the same degree of care to protect PowerX Confidential Information from accidental and/or unauthorised use and disclosure as Customer uses to protect Customer’s own confidential information, but in no event shall such degree of care be less than a reasonable degree of care. For the purposes of this Agreement, “PowerX Confidential Information” means (i) any and all documents and other materials that are marked as being confidential or proprietary, and (ii) any and all information that one would reasonably deem to be confidential given the nature of the information and the circumstances regarding its disclosure, including, but not limited to, trade secrets, object and source code, know-how, proposed products and services, research and development, business forecasts, finances and customer lists.

4. INDEMNIFICATION

Customer will indemnify, defend, or hold harmless PowerX from any action, suit, or proceeding brought against PowerX by a third party alleging that the Customer Data, or Customer’s use of the Services in violation of this Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party, and Customer will indemnify PowerX against all damages and costs finally awarded or those costs and damages agreed to in a monetary settlement of such action, which are attributable exclusively to such claim, provided that PowerX: (i) provides prompt written notice of the claim to Customer; (ii) gives Customer sole control of the defence and settlement of the claim (provided that Customer may not settle any claim unless it unconditionally releases PowerX of all liability); and (iii) provides Customer, at Customer’s expense, with all reasonable information and assistance relating to the claim and reasonably cooperates with Customer and its counsel.

5. NO WARRANTIES

5.1 PowerX, its licensors, and its suppliers make no warranties of any kind, and PowerX, its licensors, and its suppliers expressly disclaim, to the maximum extent permitted by law, all warranties, express or implied, oral or written, including, without limitation, (i) any warranty that any SaaS Services are error-free or will operate without interruption, or that all errors will be corrected; (ii) any and all implied warranties of merchantability, fitness for a particular purpose, and non-infringement; (iii) any warranty that content and/or third party software will be accurate, reliable, and error-free; and (iv) any and all implied warranties arising from statute, course of dealing, course of performance, or usage of trade. no advice, guidance, statement, or information given by PowerX, its affiliates, contractors, or employees shall create or change any warranty provided herein.

5.2 Nothing contained in this section (no warranties) shall aim to limit any liability to the extent prohibited by law.

6. LIMITATION OF LIABILITY

6.1 Limitation of Liability. To the fullest extent permitted by law, PowerX’s total liability to the Customer (including legal fees awarded under this Agreement) for any claim under this Agreement or relating to the Services, will be limited to the fees paid by the Customer to the Reseller for the Services in the prior twelve (12) months for the product or service which is the subject matter of the claim.

6.2 Exclusion of Indirect Damages. In no event will PowerX be liable under this agreement for any indirect, special, incidental, exemplary, punitive, treble, or consequential damages (including, without limitation, loss of business, revenue, profits, staff time, goodwill, use, data, or other economic advantage), cost of replacement, whether based on breach of contract, breach of warranty, tort (including negligence), product liability or otherwise, whether or not PowerX has previously been advised of the possibility of such damages.

7. TERM AND TERMINATION

7.1 Agreement Term. The term of this Agreement commences on the Effective Date and shall continue in full force and effect until the expiration or termination of all outstanding Order Documents (“Term”), unless otherwise terminated earlier as provided hereunder.

7.2 Termination. PowerX may terminate this Agreement, including all Order Documents, immediately upon written notice in the event: (i) that PowerX does not receive payment from the Reseller for the Services; (ii) that the Customer commits a non-remediable, material breach of this Agreement; (iii) that Customer fails to cure any remediable material breach within thirty (30) days of being notified in writing of such breach; (iv) of institution of bankruptcy, receivership, legal insolvency, reorganisation, or other similar proceedings by or against the Customer, if any such proceedings have not been dismissed or discharged within thirty (30) days after they are instituted; or (v) Customer ceases or threatens to cease to carry on business or becomes unable to pay its debts. Where PowerX has a right to terminate this Agreement, PowerX may, at its discretion, terminate the Agreement in whole or only terminate the applicable Order Document. Order Documents that are not terminated shall continue in full force and effect under this Agreement.

7.3 Effect of Termination. Upon any expiration or termination of this Agreement or an applicable Order Document, the Customer shall promptly cease all use of the Services described thereunder and shall either securely destroy or securely transfer, at PowerX’s sole discretion, all software, including all copies (except to the extent storage of any data is required by Applicable Law) and shall upon written request certify its compliance with the foregoing to PowerX in writing.

8. GENERAL PROVISIONS

8.1 Force Majeure. Neither party shall be liable to the other for any delay or failure in the performance of this Agreement or for loss or damage of any nature whatsoever suffered by the other party due to disruption or unavailability of communication or hosting facilities, utility or Internet service provider failure, denial of service attacks, acts of war, acts of terrorism, pandemic events, acts of God, acts of vandalism, lightning, fire, strike, unavailability of energy sources or any other causes beyond the party’s reasonable control.

8.2 Assignment. In the event of a Change of Control, PowerX may assign this Agreement in its entirety (including its Services under any Order Document) to its parent company or other affiliated company. In the event such assignment is not subject to the foregoing, neither party may assign this Agreement or any of its rights and obligations herein without the other party’s prior written consent (which shall not be unreasonably withheld).

8.3 Export. The Services may be subject to export laws and regulations of the United Kingdom and other jurisdictions. Customer represents that it is not on any UK, US or EU government denied-party list. Customer will not permit any of its users to access or use the Services in an embargoed country or region or in violation of applicable export laws and regulations.

8.4 Anti-Corruption. Customer has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of PowerX in connection with this Agreement.

8.5 Miscellaneous. This Agreement, including any applicable Order Documents, cancels and supersedes all prior or contemporaneous oral or written communications, agreements, requests for proposals, representations or warranties, or other communication and constitutes the parties’ entire agreement relating to its subject matter. PowerX may from time to time in its discretion discontinue certain Services or modify certain features or functionality of the Services. This Agreement does not and is not intended to create a partnership, franchise, joint venture, agency, or a fiduciary or employment relationship. Neither party may bind the other party or act in a manner which expresses or implies a relationship other than that of independent contractor. Customer agrees that PowerX may list Customer’s name and logo on the PowerX website and in marketing collateral during the Term. If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired. Any waiver of a party’s rights or remedies under this Agreement must be in writing to be effective. No failure of either party to exercise or enforce any rights under this Agreement shall act as a waiver of such rights. This Agreement is for the benefit of the parties and their successors and permitted assigns and does not confer any rights or benefits on any third party.

8.6 Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of England, without giving effect to its principles of conflict of laws, and the parties consent to exclusive venue and jurisdiction in the English courts for any dispute arising out of this Agreement.

8.7 Survival. Sections 1.4, 1.5, 1.6, 1.7, 2, 3, 4, 5, and 6 will survive any termination or expiration of this Agreement.

9. DEFINITIONS

9.1 “Applicable Law” means all local, national and multinational laws, rules, regulations and governmental obligations that are applicable to a party as the context requires.

9.2 “Change of Control” means a transaction or series of transactions resulting in a change in the majority ownership or voting control of a party.

9.3 “Customer” is any person or legal entity with whom Reseller wishes to enter into, enters into or has entered into a legal relationship under an Order Document that is submitted by Reseller and accepted by PowerX.

9.4 “Customer Data” is any data that Customer or its users provide, transfer or otherwise make available to PowerX under this Agreement.

9.5 “Effective Date” means the start date set forth in the applicable Order Document.

9.6 “License Metrics” means any limits or restrictions on the licence scope for the SaaS Services set forth herein or in an applicable Order Document, including, without limitation, any usage limitations, limitations based on the number of users, locations or reports, or limitations based on square footage.

9.7 “Order Document” is a mutually executed order form, statement of work, or similar ordering document signed by PowerX and Reseller and describing commercial information and related terms for the Services licensed and/or provided to Customer.

9.8 “Reseller” means the authorised reseller of Services that signed a contract with Customer.

9.9 “SaaS Services” is the hosted software provided to Customer by PowerX on a subscription basis, inclusive of updates, as further described in an Order Document.

9.10 “Services” means the Saas Services and any associated services delivered by PowerX from time to time.