Yellowfin End User Software Agreement - revised 27 August 2013 Yellowfin International Pty Ltd - Yellowfin End User Software License Agreement PLEASE READ THIS END USER SOFTWARE LICENSE AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THE PRODUCT AND DOCUMENTATION TO WHICH THIS AGREEMENT RELATES. BYACCEPTING THIS AGREEMENT INCLUDING BY INSTALLING OR USING THE PRODUCT YOU AGREETO BE BOUND BY THESE TERMS AND CONDITIONS AND ACKOWLEDGE YOUR AUTHORITY TO DO SO ON BEHALF OF YOUR COMPANY (IF APPLICABLE). IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS DO NOT INSTALL OR USE THE PRODUCT AND PROMPTLY RETURN ALL COPIES OF THE PRODUCT AND DOCUMENTATION TO YOUR SUPPLIER FOR A FULL REFUND. IF YOU ACCESSED THE PRODUCT ELECTRONICALLY CLICK DISAGREE/DECLINE. FOR YELLOWFIN SOFTWARE INCLUDED WITH YOUR PURCHASE OF THIRD PARTY SOFTWARE OR HARDWARE YOU MUST RETURN THE ENTIRE HARDWARE/SOFTWARE PACKAGE IN ORDER TO OBTAIN A REFUND. 1. Grant of License. 1.1 Yellowfin refers to Yellowfin International Party Ltd and you orLicensee refers to the individual installing or using the Product if you are acting as an individual; otherwise you or Licensee means the business or other entity for which you are obtaining the Product. Subject to this Agreement and payment of all applicable license feesYellowfin grants you a non-exclusive non-transferable personal limited license to use the software for which valid control codes have been issued by Yellowfin identified in: (i) the written or electronic order document form or invoice provided or accepted by Yellowfin (each an Order); or (ii) the installation procedure (a Product) solely for your internal business purposes. Any Product update patch and/or new release (each an Update) replaces part or all of a Product or Update previously released and terminates the license to such previously licensed Product or Update to the extent replaced by the Update. Each Update is subject to the terms and conditions of the license agreement accompanying the Update or if no license agreement accompanies the Update to the terms and conditions of this Agreement. Yellowfin grant you a non-exclusive non-transferable limited personal license (withoutthe right to sublicense) touse the written technical materials and end user instructions if any distributed with the Product (theDocumentation). 1.2 Except for the license rights granted herein Yellowfin and/or its licensors at all times retain all right title and interest in the Product and the Documentation . The Product is licensed not sold for use only under the terms of this Agreement and Yellowfin reserves all rights not expressly granted to you. 1.3 The term of th is license is set forth on the Order unless otherwise terminated in accordance with this Agreement. 1.4 You agree to pay the Product fees listed in the Order. You also agree to pay any applicable value - added taxes or other applicable taxes tariffs or withholding taxes which the relevant authoritie s require you to pay. All fees are exclusive of any such taxes or tariffs unless expressly agreed by Yellowfin. 1.5 Product Will Time Out After Forty Five Days. Yellowfin will first issue you a temporary Software License Key which key will time out and stop the Product from functioning after forty - five (45) days. Provided no amount due is outstanding and you are not in default under this Agreement Yellowfin will send you a permanent Software License Key before the temporary key expires. 1.6 For Product shipped via electronic delivery delivery is deemed complete FOB shipping point when the Product is made available at the electronic software download (ESD) site specified by Yellowfin and Yellowfin e - mails or otherwise issues you instructions to access and download the Product. For Product you have licensed under a software as a service (SAAS) delivery method delivery is deeme d complete when Yellowfin or a third party supplier have issued you instructions to access and use the Product. 2. License Restrictions. 2.1 Your use of the Product and Documentation is limited to internal use within your organization. The Product and Documentation may not be used by your subsidiaries affiliate s or any other third parties unless specifically agree d in writing by Yellowfin . 2.2 The license model for the Product is set forth in the Order and described in Exhibit A. Third party rights and any additional licensing restrictions are set forth or referenced in Exhibit A. 2.3 You agree not to copy (except as provided in Section 7.2) disassemble reverse engineer decompile modify or create derivative works of the Product or the Documentation to the extent that such restriction is not prohibited by applicable mandatory law. 2.4 You may not s ublicense sell encumber outsource or grant any other rights in the Product and/or the Documentation or allow the Product or Documentation to be possessed by another party. 2. 5 You agree that you will not import export or re - export the Product including technical data to any country person entity or end user in violation of U.S.A. export control laws regulations or restrictions. 2. 6 If you are acquiring the Product by or on behalf of the U.S. Government or by a U.S. Government primecontrac tor or subcontractor (at any tier) then the U.S. Governments rights in the Product will be only as set forth herein. The Product and related Documentation is a commercial item as that term is defined at 48 C.F.R. 2.101 consisting of commercial comput er software and commercial computer software Documentation as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 - 1 through 227.7202 - 4 all U.S. Government end users acquire the Product and such Documentation with only those rights set forth herein. Contract/Manufacturer is: Yellowfin International Party Ltd Level 46 360 Elizabeth Street Melbourne3000 Australia. 2. 7 You may not assign this Agreement without the prior written consent of Yellowfin . H owever you may assign this Agreement in whole to any successor in interest by operation of law or pursuant to a merger corporate reorganization or sale of all or substantially all of your business. 2. 8 You may not disclose benchmark test results for the Product without the written consent of Yellowfin. 3. Installation and Use You may install and /or access and use the Product only in the configuration and for the number of licenses you acquire. Individual licenses may not be shared for use on different computers or servers. Yellowfin may control the number and type of licenses and the use of the Product by key codes. If a license key or other security device is provided with the Product you may not share or transfer the security device to any other third party. 4. Consent to use of data You agree that Yellowfin and its authorised representatives may collect and use technical information you provide as a part of support services relate d to the Product . 5. Limited Warranty. 5.1 Yellowfin warrants for a period of ninety (90) days from the date of the O rder (the Warranty Period) that the Product will conform in all material respects to the Documentation. As the sole and exclusive remedy for any breach of this warranty Yellowfin will repair or replace the Product if the failure is reported during the Warranty Period . I f Yellowfin reasonably determines that repair or replacement is not economically or technically feasible Yellowfin may terminate this Agreement and provide you a full refund of the license fee paid with respect to the Product. 5 . 2 Where you have licensed and paid for use of the Product on a subscription basis o r if you order and pay for support support provided will be in accordance with Yellowfins then current and applicable support policies. Yellowfins current support policies are listed at www.yellowfinbi.com . 5. 3 Yellowfin does not warrant that the Product will meet your requirements or that operation of the Product will be uninterrupted or error free. It is your responsibility to select the correct Product to achieve your intended results and for any results obta ined with the Product. Yellowfin disclaims a ll warranties if the Product is not properly set up and configured. 5. 4 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT YELLOWFIN ITS LICENSORS AND THEIR RESPECTIVE SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATI ONS EXPRESS OR IMPLIED RELATING TO THE PRODUCT OR ANY SERVICES OR UPDATES. ANY UPDATES OR SERVICES ARE DELIVERED AS IS WITHOUT ANY WARRANTY OF ANY KIND EXPRESS OR IMPLIED STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW YEL LOWFIN DISCLAIMS ALL IMPLIED WARRANTIES AND REPRESENTATIONS INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY FITNESS FOR A PARTICULAR PURPOSE TITLE AND NONINFRINGEMENT WITH RESPECT TO THE PRODUCT OR ANY SERVICES OR UPDATES . T he Product is not fault tolerant and is not designed manufactured or intended for use in hazardous environments requiring fail - safe performance (including without limitation the design construction operation or maintenance of any nuclear facility; direct life support machines; weapon systems; or control of aircraft air traffic aircraft navigation or aircraft communications) in which the failure of the Product could lead directly or indirectly to death personal injury or severe physical or environmenta l damage. Yellowfin for itself and on behalf of its licensors and their respective suppliers disclaims any express or implied warranty of fitness of the Product for any such high risk uses. 6. Intellectual Property Ownership and Indemnity. 6.1 You agree that Yellowfin owns all intellectual property rights in: (a) the Product; and (b) all amendments enhancements and modifications of the Product including any created solely by Yellowfin or as a result of collaboration with you .Y ou further ag ree that Yellowfin is not bound by any duty of confidentiality with respect to any such amendments enhancements or modifications. 6.2 Yellowfin will defend indemnify and hold you harmless from all costs and reasonable expenses awarded by a court or agreed to in settlement which directly result from any third party claim that a Product infringes either a valid : (a) Australia or United States patent ; or (b) copyright of a country that is a party to the Agreement for Trade Related Aspects of i ntellectual Property Rights (TRIPS) but only if you notify Yellowfin promptly in writing of such claim and give Yellowfin sole control of the defense of any such claim and all negotiations for its settlement or compromise. You agree to reasonably cooperate with Yellowfin in the defense settlement or compromise of any claim. In the event that a final injunction is obtained against your use of the Product if Yellowfin reasonably believes that your use of the Product could be enjoined or if in Yellowfins opinion the Product is likely tobecome the subject of a successful claim of infringement Yellowfin will: (i) obtain the right for you to continue using the Product (ii) modify or replace the Product so that it becomes noninfringing or in the event neither of the previous two options are commercially reasonable for Yellowfin (iii) terminate this Agreement and refund : (a) if you are licensed to use the Product on a subscription basis any prepaid but unused fees as of the date of termination; or (b) for any other license type the amount you paid for the Product less an amount for depreciation determined on a straight - line five - year depreciation basis with a commencement date as of the dat e of the Order for the Product. Yellowfin will have no liability for a claim if the claim is based on : (A) your use of the Product more than thirty (30) days after Yellowfin has notified you of (i) (ii) or (iii) above or (B) the version of the Product you are using is not the current release version of the Product. 6.3 Yellowfin will have no liability under this Section 6 to the extent that any infringement or claim is based upon : (i) the combination operation or use of the Product with equipment or software not supplied by Yellowfin (ii) you r fail ure to comply with designs specifications or instructions provided by Yellowfin (iii) you r use of the Product in an application or environment for which it was not designed or n ot contemplated (iv) modifications made by anyone other than Yellowfin or (v) use of the Product by users not permitted by this Agreement. 6.4 THE FOREGOING INDEMNIFICATION PROVISIONS STATE THE ENTIRE LIABILITY OF YELLOWFIN AND YOUR SOLE AND EXCLUSIVE R EMEDY WITH RESPECTTO ANY INFRINGEMENT OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS. 7 . Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW THE LIABILITY OF YELLOWFIN IF ANY FOR DAMAGES RELATING TO ANY PRODUCT UPDATE AND/OR SERVICES IS LIMITED TO THE ACTUAL AMOUNTS YOU PAID FOR THE PRODUCT UPDATE AND/OR SERVICES. YELLOWFINS LICENSORS AND THEIR SUPPLIERS HAVE NO LIABILITY TO YOU FOR ANY DAMAGES. IN NO EVENT WILL YELLOWFIN ITS LICENSORS OR ANY OF THEIR RESPECTIVE SUPPLIERS BE LIABLE FOR ANY LOST REVENUE PROFIT OR DATA OR FOR INDIRECT PUNITIVE SPECIAL INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND INCLUDING WITHOUT LIMITATION ANY COMMERCIAL DAMAGES OR LOS SES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT ANY UPDATE AND/ OR ANY SERVICES EVEN IF YELLOWFIN ITS LICENSORS AND/OR ANY OF THEIR RESPECTIVE SUPPLIERS HAVE BEEN INFORMED OF THE POSS IBILITY OF SUCH DAMAGES. EACH EXCLUSION OR LIMITATION IS INTENDED TO BE A SEPARATE AND SEVERABLE EXCLUSION. 8 . Audit Rights. Yellowfin may install and use automated license tracking management and/or enforcement solutions with the Products which you may not disrupt or alter. You agree to maintain books and records in connection with this Agreement and your use of the Product and any Updates and/or services provided by Yellowfin . Such books and records shall include at a minimum the number of licenses you purchased and the number you are using . At its expense and with reasonable written notice Yellowfin or a third party appointed by Yellowfin may audit the books records and if necessary the systems on which the Product or any Update is installed fo r the sole purpose of ensuring compliance with the terms of this Agreement. Yellowfin will have the right to conduct follow - up audits as necessary. All audits shall be conducted during regular business hours at your offices and will not unreasonably interfe re with your activities. Yellowfin will treat all such records and books as confidential information. If any audit reveals that you have underpaid license orsupport fees you agree to pay for the underpaid fees based on Yellowfin list price s in effect at the time the audit is completed. If the underpaid fees are in excess of five percent (5%) of the